Area 51 Productions, Inc. v. City of Alameda

Area 51 Productions, Inc. (Area 51), an event planning company, had a longstanding

relationship with the City of Alameda (the City) to license the use of certain

City property to Area 51 for events Area 51 helped plan and promote with third-party

companies. The City relied on PM Realty Group, L.P. (PM) to assist it with managing

these license arrangements. Due to various problems at or in connection with events put

on by Area 51, the City decided to cease doing business with it in mid-2014.

Because that left Area 51 on the hook to a number of third-party entities based on

commitments undertaken in reliance on PM’s previous confirmation of the City’s

willingness to license event space, Area 51 sued the City and various other parties who

acted on the City’s behalf, seeking damages. Sued along with the City were City

Manager John Russo and Acting Assistant Community Development Director Nanette

Banks Mocanu, as well as PM and three employees of PM, Stacey McCarthy, Tiffany

McClendon and Maria Elgarico.



Unless otherwise indicated, we will refer to all appellants collectively as the

“Defendants,” to Russo and Mocanu as the “Individual City Defendants,” and to PM,

McCarthy, McClendon and Elgarico as the “PM Defendants.”

In response to the complaint, Defendants filed a general demurrer and a motion to

strike all causes of action under Code of Civil Procedure2

section 425.16, commonly

known as the anti-SLAPP statute. Following the trial court’s simultaneous denial of that

motion and grant of the demurrer, Defendants appealed the adverse order on their antiSLAPP

motion, arguing that all of Area 51’s claims arise from protected activity and are

without merit. We shall reverse in part and affirm in part.

I. BACKGROUND

A. Factual History

Together with the facts alleged in the complaint, the declarations submitted in

support of and against the anti-SLAPP motion reveal, in substance, the following

circumstances. The City has leased a substantial amount of land from the federal

government since at least 2000, including, as relevant here, the former Alameda Naval

Air Station, also known as Alameda Point. According to the City, it “licenses specific

areas of Alameda Point for private use, including an area known as the Northwest

Territories (the ‘NWT’) located on the former Naval Air Station runway.” The City

established an elaborate licensing process for anyone who wants to use its property, and

as part of that process has contracted with PM since 2004 to “manage[] the leasing and

licensing of Alameda Point.”

For over a decade, the City has licensed the NWT and other property to Area 51,

an event promotion company, for various events the company has helped plan and

promote on behalf of third-party companies. Apparently, however, this long-standing

relationship has been periodically fraught with disputes surrounding Area 51’s

compliance with the City’s rules. For instance, the two parties have sometimes disagreed

on whether Area 51 properly disclosed its intended activities in some licensing

applications; and sometimes other tenants have complained about Area 51’s disturbances.

Given these issues, around late 2013 the City encouraged Area 51 to work with Rock



2 All undesignated statutory references are to the Code of Civil Procedure.

3 Both parties also make requests for attorney fees, which we will discuss below.

3

Wall, another of the City’s tenants, but one with whom it has had few if any compliance

issues. Thus, in September 2013 Area 51 and Rock Wall formed a new entity, Area 51

Enterprises, LLC (Enterprises). On September 23, 2013, Enterprises entered into a oneyear

standing licensing agreement with the City starting October 1, 2013. The agreement

provided (1) it was “fully revocable at the sole option and discretion of” the City, and

(2) prohibited transfers to anyone but Enterprises and the City.

Only a few days later, on October 4, 2013, Rock Wall severed ties with Area 51

and withdrew from Enterprises. It seems no one informed the City of this development

until January 2014, at which point PM notified Area 51 that “the current license

agreement in place is no longer valid since the company has made legal changes with

their stakeholders and the agreement is between the City and both companies.” Before

and after finding out about Rock Wall’s withdrawal from Enterprises, the City placed

“soft holds” on the NWT property upon Area 51’s request, for various events from May

to December 2014. In February 2014, the City reminded Area 51 by email that it would

need to obtain new license agreements; otherwise, it would “be unable to utilize the

Northwest Territories for the events held on the calendar.” It is unclear whether Area 51

received, acknowledged, or responded to these emails.

On March 10, 2014, Area 51 emailed PM to confirm the holds for its events later

that year. The next day Elgarico replied for PM on behalf of the City, confirming the

“soft holds” for the specified dates. The City then emailed Area 51 in late March to

reiterate it needed to memorialize “licenses for those scheduled events,” and PM emailed

Area 51 in April with a draft license agreement for its May event and clarified that PM

would “do a new [l]icense agreement for each of [Area 51’s] events.” According to Area

51, this email exchange essentially serves as the communicated offer and acceptance of

terms, producing a firm contractual commitment to license the NWT properties to Area

51 on the “soft hold” dates.

Defendants allegedly breached this “agreement” in May, as evidenced by a May

19, 2014 email from Mocanu to Area 51, stating “I have spoken to the City Manager” and

4

“the City’s licensing relationship with Area 51 is over.” Nevertheless, the event in May

took place as scheduled without a new license agreement, but gave rise to some

compliance disputes which ultimately triggered the City’s termination of the relationship

on May 19. In her May 19 email to Area 51, Mocanu pointed to these compliance issues

as an example of why the City had wanted Area 51 to work “under Rock Wall.”

B. Procedural History

Area 51 filed a notice of claim with the City, requesting use of the property on the

dates requested or damages. The City denied this request, prompting Area 51 to file its

complaint, naming as defendants the City, the Individual City Defendants, and the PM

Defendants, and asserting six causes of action against all of them. In the complaint, Area

51 alleged on information and belief that each Defendant was an “agent, employee or

representative of each of the . . . [other] Defendants and in doing the things mentioned

herein, was acting in the course and scope of such agency and employment.” Attached to

the complaint were numerous documentary exhibits detailing many of the facts

summarized above.

Area 51’s six causes of action were: (1) breach of contract and breach of the

implied covenant of good faith and fair dealing, based on its belief that Defendants had

entered into a contract with Area 51 by virtue of confirming the holds on its events “on or

about March 11, 2014”; (2) tortious interference with Area 51’s third-party contracts;

(3) intentional interference with prospective economic relations; (4) negligent

interference with prospective economic relations; (5) unfair competition under Business

and Professions Code section 17200; and (6) negligent misrepresentation, as to the

“important fact . . . that their confirmed reservations of the [NWT] Property would be

honored.”

The City and the Individual City Defendants timely moved to strike all six causes

of action under the anti-SLAPP statute, and the PM Defendants joined the motion. Area

51 opposed it, submitting the declaration of its Chief Executive Officer, John Walker, as

the sole evidentiary showing in support of its claims. Without attaching and

5

authenticating any of the various documents supplied as exhibits to the complaint,

Walker’s declaration reads, in its entirety, as follows:

“1. I am the CEO of Area Productions, Inc., d/b/a Area 51 Enterprises, LLC, the

Plaintiff if [sic] the above-captioned action.

“2. In March of 2014 of 2014 [sic] the City and PM Realty, through its [sic]

agents and employees[,] confirmed and agreed on dates for four events. Two events, one

for Volkswagen and one for BMW, occurred before the natural termination of a Long

Term Agreement for leasing space with the City that was set to expire in September,

2014. The remaining events, for Bridgestone and Porsche, were set to occur on October

7–12, 2014 and November 4–10 2014, respectively. PM Realty knew that the Property

must be unconditionally available before I could secure Third Party Agreements and

attendance insurance, as was customary in our dealings for the prior two decades.

“3. Area 51 Enterprises was formerly business partners with Rock Wall Wine,

Inc.

“4. When Area 51 Enterprises partnered with Rock Wall Wine, Inc., it introduced

Rock Wall to the Property it had used to hold its events for the prior 18 years.

“5. Up until September 2014 Area 51 and the City had a Long Term License

Agreement that covered all of its individual events.

“6. After September 2014 Area 51 confirmed its individual events with PM

Realty before entering into Third Party Agreements.

“7. Contrary to Defendants’ assertion that it either (a) was ‘void 4 days after its

execution’ or (b) ‘in January 2014’ when Defendant[s] allegedly became aware of

potential grounds to void the Agreement, I never received any indication that the City or

PM Realty prevent [sic] Area 51 from use of the Property.

“8. In fact, up until May of, 2014, the City, PM Realty and the Individual

Defendants continued to accept security deposits from Area 51 and never indicated that

Area 51 should not enter into Third Party Agreements, after confirming their space, as

they had in the 18 years prior.

6

“9. Although the City and PM Realty have offered a number of excuses for failure

to provide the Property as required, among them: (1) heavy trucks . . . (2) change in

proportional shares of Area 51 and (3) licensing issues, the Defendants have neglected

their obligations due to a personal issues [sic] the Defendants have with me, unrelated to

business or any agreements we have entered.

“10. Upon information and belief, the City, PM Realty, [and the] Individual

Defendants conspired to force Area 51 out of the lease space and secure a more lucrative

deal with Area 51’s former partner, Rock Wall.

“11. Due to the acts and omissions set forth in my Complaint, Area 51 has been

sued by one of the Third Parties addressed in the Complaint. See Octagon Inc. v. Area 51

Enterprises (BC 539128) seeking $121,650.00 for ‘failing to provide the Premises or

services as promised.’

“12. It was Defendants’ non-performance that occasioned Area 51’s inability to

provide the Property for purposes of the BMW Event.

“13. The City an [sic] PM Realty continue to do business with Rockwall [sic],

despite its claims that Rock Wall’s transfer of ownership shares resulted in some

prejudice to them that allowed breach of the subject agreements.”

The trial court denied Defendants’ anti-SLAPP motion without addressing

whether Area 51 showed a probability of success on any of its claims. The court

concluded the conduct underlying all of Area 51’s claims is not protected activity within

the meaning of the statute. (See § 425.16, subds. (b)(1), & (e)(2) & (4).)4

For this

conclusion, it cited three cases relied upon by Area 51 (see Kajima Engineering &

Const., Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 930–931 (Kajima);

Blackburn v. Brady (2004) 116 Cal.App.4th 670, 676–677 (Blackburn); Wang v. WalMart

Real Estate Business Trust (2007) 153 Cal.App.4th 790, 808–809 (Wang)), and



4 Defendants filed an extensive set of evidentiary objections to the Walker

Declaration. After denying the anti-SLAPP motion on grounds Area 51’s complaint is

not based on protected conduct, the court overruled Defendants’ evidentiary objections,

concluding they were “moot.” Defendants have not challenged that ruling on this appeal.

7

distinguished one relied on by Defendants (see City of Costa Mesa v. D’Alessio

Investments, LLC (2013) 214 Cal.App.4th 358 (City of Costa Mesa)).

Along with their anti-SLAPP motion, the City and the Individual City Defendants

also filed a demurrer as to all claims, which the PM Defendants joined. The court

sustained the demurrer with leave to amend. Defendants appealed the denial of their antiSLAPP

motion (see §§ 425.16, subd. (i) & 904.1, subd. (a)), one day after Area 51 filed

its motion for attorney fees under the statute (see § 425.16, subd. (c)(1)).

II. DISCUSSION

A. The Anti-SLAPP Statutory Scheme and the Standard of Review

A SLAPP suit—a strategic lawsuit against public participation—seeks to chill

rights to free speech or petition by dragging the speaker or petitioner through the

litigation process, without genuine expectation of success in the suit. The Legislature

enacted section 425.16 to provide a summary disposition procedure for SLAPP claims.

Toward this end, section 425.16 authorizes courts, upon motion by anyone who claims to

be the target of a SLAPP suit, to probe the basis for any cause of action allegedly arising

from protected communicative activities, and to strike it if the claimant cannot show

minimal merit. “[T]he statutory remedy afforded by section 425.16 extends to statements

and writings of governmental entities and public officials on matters of public interest . . .

that would fall within the scope of the statute if such statements were made by a private

individual or entity.” (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 17.)5



5

See also San Ramon Valley Fire Protection Dist. v. Contra Costa County

Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343, 353 (San Ramon) (“We have

no doubt that a public official or government body, just like any private litigant, may

make [a special motion to strike] where appropriate”); City of Costa Mesa, supra, 214

Cal.App.4th at pages 371, 384 (striking claims against city employees based on

statements employees made to members of public concerning possibility of obtaining

licenses at plaintiff’s property); Levy v. City of Santa Monica (2004) 114 Cal.App.4th

1252, 1258–1259 (striking complaint against city and city council member based on

council member’s statements made to planning department about a citizen’s building

permit); Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1116 (striking

8

The heart of the anti-SLAPP statute is section 425.16, subdivision (b)(1), which

provides: “A cause of action against a person 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 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.” Section

425.16, subdivision (b)(1) does not provide a form of immunity, “insulat[ing] defendants

from any liability for claims arising from the protected rights of petition or speech.”

(Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) Rather, the statute “only provides a

procedure for weeding out, at an early stage, meritless claims arising from protected

activity.” (Ibid.)

6

Courts analyze anti-SLAPP motions using a familiar two-step analysis. In step

one, “ ‘ “the court decides whether the defendant has made a threshold showing that the

challenged cause of action is one ‘arising from’ protected activity.” ’ ” (Barry v. State

Bar of California (2017) 2 Cal.5th 318, 321 (Barry).) Although the anti-SLAPP statute

does not actually use the term “protected activity,” that is the shorthand phrase adopted in

the case law to describe speech or petitioning activities. (See, e.g., ibid.; Navellier v.

Sletten (2002) 29 Cal.4th 82, 89 (Navellier) [interpreting § 425.16, subd. (b)(1), to

require that the court first decide whether “the challenged cause of action is one arising

from protected activity”].) Four categories of “protected activity” are set forth in section



complaint against county and its employees based on statements employees made in

investigatory report).

6

See Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th

992, 1004 (Anti-SLAPP statute “merely attempts to insulate [defendants]from

having to litigate plainly unmeritorious lawsuits . . . . If, in fact, there is merit to the

plaintiff’s cause of action, the plaintiff can avoid dismissal simply by establishing a

probability of prevailing.”); Flatley v. Mauro (2006) 39 Cal.4th 299, 312 (Flatley)

(Section 425.16 “ ‘ “establishes a procedure where the trial court evaluates the merits

of the lawsuit using a summary-judgment-like procedure at an early state of the

litigation.” ’ ”).

9

425.16, subdivision (e), which defines an “ ‘act in furtherance of a person’s right of

petition or free speech under the United States or California Constitution in connection

with a public issue.’ ” Two of these categories—set forth in subdivision (e)(2) and (4)—

are invoked by Defendants here: “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)), and “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)).

If a court concludes the activity at issue is protected by subdivision (e), it turns to

the second step: “ ‘ “it then must consider whether the plaintiff has demonstrated a

probability of prevailing on the claim.” ’ ” (Barry, supra, 2 Cal.5th at p. 321.) “The

court ‘ “ ‘accept[s] as true the evidence favorable to the plaintiff [citation] and evaluate[s]

the defendant’s evidence only to determine if it has defeated that submitted by the

plaintiff as a matter of law.’ ” ’ ” (Ibid.) Courts “do not resolve the merits of the overall

dispute, but rather identify whether its pleaded facts fall within the statutory purpose, ‘to

prevent and deter “lawsuits . . . brought primarily to chill the valid exercise of the

constitutional rights of freedom of speech and petition for the redress of grievances.” ’ ”

(Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 54.) The plaintiff is

required to “ ‘show . . . there is admissible evidence that, if credited, would be sufficient

to sustain a favorable judgment.’ [Citation.] ‘The plaintiff may not rely solely on its

complaint, even if verified; instead, its proof must be made upon competent admissible

evidence.’ ” (City of Costa Mesa, supra, 214 Cal.App.4th at p. 376.) “ ‘ “Only a cause

of action that satisfies both prongs of the anti-SLAPP statute . . . is a SLAPP, subject to

being stricken under the statute.” ’ ” (Barry, supra, 2 Cal.5th at p. 321.)

On appeal, we review the trial court’s ruling on Defendants’ anti-SLAPP motion

de novo. (Flatley, supra, 39 Cal.4th at p. 325.) And in doing so, we follow the same

two-step analysis (outlined above) as the trial court: “[W]e neither ‘weigh credibility

10

[nor] compare the weight of the evidence. Rather, . . . [we] accept as true the evidence

favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to

determine if it has defeated that submitted by the plaintiff as a matter of law.’ ” (Id. at

p. 326.)

B. The First Step of the Anti-SLAPP Analysis

In applying section 425.16, subdivision (b)(1), the mode of proceeding and the

applicable analysis at the often-elusive first step have been worked out in some detail in

the case law. “[T]he court shall consider the pleadings, and supporting and opposing

affidavits stating the facts upon which the liability or defense is based.” (§ 425.16,

subd. (b)(2).) “To determine whether a cause of action arises from protected activity, we

disregard its label and instead examine its gravamen ‘by identifying “[t]he allegedly

wrongful and injury-producing conduct . . . that provides the foundation for the claim.” ’

[citation], i.e., ‘ “the acts on which liability is based,” ’ not the damage flowing from that

conduct.” (Wilson v. Cable News Network, Inc. (2016) 6 Cal.App.5th 822, 831, review

granted Mar. 1, 2017, S239686 (Wilson); see Navellier, supra, 29 Cal.4th at pp. 91–95;

City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of Cotati) [“the statutory phrase

‘cause of action . . . arising from’ means simply that 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”].)

“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).) “Critically, ‘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.’ [Citations.] . . . [T]he focus is on determining what ‘the defendant’s activity [is]

that gives rise to his or her asserted liability—and whether that activity constitutes

protected speech or petitioning.’ ” (Id. at pp. 1062–1063.) “If the core injury-producing

conduct upon which the plaintiff’s claim is premised does not rest on protected speech or

petitioning activity, collateral or incidental allusions to protected activity will not trigger

11

application of the anti-SLAPP statute.” (Hylton v. Frank E. Rogozienski, Inc. (2009) 177

Cal.App.4th 1264, 1272; see City of Colton v. Singletary (2012) 206 Cal.App.4th 751,

767 (Singletary) [“the question is whether the protected activity is merely an incidental

part of the cause of action”].)

Essentially, the “court must ‘distinguish between (1) speech or petitioning activity

that is mere evidence related to liability and (2) liability that is based on speech or

petitioning activity. Prelitigation communications . . . may provide evidentiary support

for the complaint without being a basis of liability.’ [Citation.] ‘[T]he mere fact that an

action was filed after protected activity took place does not mean the action arose from

that activity for the purposes of the anti-SLAPP statute.’ ” (Wilson, supra, 6 Cal.App.5th

at p. 832, rev. granted; see Navellier, supra, 29 Cal.4th at p. 89.) The most recent

guidance provided by our Supreme Court is that, in teasing out whether we are dealing

with protected conduct under section 425.16, subdivision (b), “courts 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.)

Sometimes, a challenged cause of action or causes of action will arise from both

protected and unprotected activity. Under Baral, “[w]hen relief is sought based on

allegations of both protected and unprotected activity, the unprotected activity is

disregarded at [the first step of the anti-SLAPP analysis]. If the court determines that

relief is sought based on allegations arising from activity protected by the statute, the

second step is reached. There, the burden shifts to the plaintiff to demonstrate that each

challenged claim based on protected activity is legally sufficient and factually

substantiated. The court, without resolving evidentiary conflicts, must determine whether

the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a

favorable judgment. If not, the claim is stricken. Allegations of protected activity

supporting the stricken claim are eliminated from the complaint, unless they also support

12

a distinct claim on which the plaintiff has shown a probability of prevailing.” (Baral,

supra, 1 Cal.5th at p. 396.)7



1. The First Through Fifth Causes of Action

a. The City

Insofar as the first through fifth causes of action are asserted against the City, we

think the trial court was correct to conclude that they do not arise from protected activity.

Through these five claims, Area 51 seeks to hold the City legally accountable for, in

essence, an alleged breach of contract—i.e., the act of ending a long-standing

arrangement to license the NWT for Area 51’s events upon confirmation of availability

by “soft hold.” Although the claims are cast differently, under distinct legal theories, the

act of reneging on a commitment to license the NWT is an indispensable feature in all of

them. In the breach of contract claim, it is the element of breach8

; in the three

interference claims, it is the element of disruption of a third-party contract or frustration

of an economic opportunity9

; and in the Business and Professions Code section 17200



7 Defendants take the position that Baral marks a sharp doctrinal break in which

the California Supreme Court has disavowed the “gravamen” test and replaced it with an

analysis focusing exclusively on whether the alleged protected conduct is merely of

“evidentiary” significance and therefore may be said to be “ ‘ “merely incidental” ’ or

‘ “collateral” ’ to the unprotected conduct.” (Sheley v. Harrop (2017) 9 Cal.App.5th

1147, 1167, 1169–1170.) In recent years, our Supreme Court has continued to refine its

approach to drawing the critical “distinction between activities that form the basis for a

claim and those that merely lead to the liability-creating activity . . . .” (See Park, supra,

2 Cal.5th at p. 1064 [denial of faculty tenure case where oral and written communications

preceding tenure decision did not form the basis of alleged liability for discrimination];

Baral, supra, 1 Cal.5th at p. 395 [disapproving use of “primary right” theory of liability

to determine whether a cause of action is based on protected activity].) We do not see in

the continuing evolution of the law on this point any fundamental shift in the nature of

the “gravamen” test as it has been applied since Navellier and City of Cotati. (See

Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 886 [“under Park and Baral, a court must

continue to analyze whether the allegations of protected activity within each ‘claim’ are

incidental or whether the principal thrust of the claim triggers anti-SLAPP protection”];

Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 588–590 [at least

in some circumstances, “the principal thrust/gravamen analysis remains a viable tool by

which to assess whether a plaintiff’s claim arises out of protected activity”].)



13

claim, it is the unfair competition element. In none of these five causes of action does

Area 51 seek to impose liability on the City for the act of sending the May 19 email

which conveyed its decision not to deal further with Area 51, or the March 11 email

which Area 51 alleges created a contract to allow use of the NWT—i.e., the allegedly

protected activity. The communications that led to and that followed the alleged injuryproducing

conduct—which is, at bottom, refusal to license to Area 51—are merely

incidental to the asserted claims. (Park, 2 Cal.5th at p. 1060 [“[A] claim is not subject to

a motion to strike simply because it contests an action or decision that was arrived at

following speech or petitioning activity, or that was thereafter communicated by means

of speech or petitioning activity. Rather, a claim may be struck only if the speech or

petitioning activity itself is the wrong complained of, and not just evidence of liability or

a step leading to some different act for which liability is asserted.”]; see also Shahbazian

v. City of Rancho Palos Verdes (2017) 17 Cal.App.5th 823, 826 [governmental entity’s

decision to issue or deny a building permit is not protected activity under § 425.16].)

10



8 Complaint, § 35 (“Defendants failed to reserve the Property for Plaintiff, and

further, refused to license or make the Property available during the confirmed

reservation dates.”).

9 Complaint, § 47 (“Defendants acted intentionally to disrupt and frustrate

Plaintiff’s relationship with Third Parties.”), id., § 55 (“Defendants engaged in wrongful

conduct through misrepresentation, interference with economic and contractual relations,

breach of contract, and violation of the Business and Professions Code.”).



10 In an effort to avoid this conclusion, the City re-characterizes Area 51’s

complaint as one for anticipatory breach of contract, which it contends is a theory of

liability that can only be supported by proving up a communication about future conduct.

The City states: “There can be no anticipatory breach of a contract without

communication by words or conduct that the breaching party will not perform.” (Italics

omitted.) Putting to one side the fact that the complaint does not in terms allege

anticipatory breach, we are not persuaded the City’s re-characterization of the complaint

changes the analysis. Under Area 51’s theory of liability, the liability-producing conduct

here was the City’s decision to end the licensing relationship (whether that decision is

doctrinally categorized as a breach of contract or as an anticipatory repudiation of a

contract), not the expressive act of declaring an end to the relationship by email. (See

14

Defendants point out, correctly, that “conduct alleged to constitute breach of

contract may also come within constitutionally protected speech or petitioning.”

(Navellier, supra, 29 Cal.4th at p. 92, italics added; see also Hecimovich v. Encinal

School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 473.) Rather than

look to Kajima, supra, 95 Cal.App.4th 921, Blackburn, supra, 116 Cal.App.4th 670, and

Wang, supra, 153 Cal.App.4th 790, the trio of cases relied upon by the trial court for the

idea that this case is exempt from anti-SLAPP scrutiny because “the focus of the claims

is on the parties’ business dealings,” Defendants rely on a series of cases they say are

more consistent with Navellier—Midland Pacific Building Corp. v. King (2007) 157

Cal.App.4th 264 (King), Vivian v. Labrucherie (2013) 214 Cal.App.4th 267 (Vivian),

Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th

873 (Digerati Holdings), Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th

1467 (Feldman), City of Costa Mesa, supra, 214 Cal.App.4th 358, and the California

Supreme Court’s recent decision in City of Montebello v. Vasquez (2016) 1 Cal.5th 409

(Vasquez).11





Mission Beverage Company v. Pabst Brewing Company, LLC (2017) 15 Cal.App.5th

686, 702 [“Mission’s claims attack Pabst’s decision to repudiate the Agreement; . . . the

fact that the repudiation was communicated through a letter does not alter the basis of

those claims”].)

11 At the back of the parties’ debate about which of these two lines of cases to

apply is Defendants’ assertion that Kajima, Blackburn, and Wang are no longer good law.

Kajima relies on Ericsson GE Mobile Communications, Inc. v. C.S.I.

Telecommunications Engineers (1996) 49 Cal.App.4th 1591, 1603 (Ericsson). Because

Navellier rejected the suggestion in Ericsson that “ ‘breach of contract or fraud actions

where the act of the [defendant] relates to the formation or performance of contractual

obligations and not . . . to the exercise of the right of free speech’ ” are not covered by the

anti-SLAPP statute (Navellier, supra, 29 Cal.4th at p. 91, quoting Ericsson, supra, 49

Cal.App.4th at pp. 1601–1602), the City argues that the Supreme Court has effectively

abrogated Kajima, and thus, implicitly, Blackburn and Wang, which cite and follow

Kajima. We do not read Navellier—or Kajima, Blackburn, and Wang, for that matter—

so broadly. In Navellier, the Supreme Court simply rejected the blanket rule some Courts

of Appeal had stated—which was that the anti-SLAPP statute “categorically excludes any

15

We think Defendants’ cases are distinguishable, at least to the extent Area 51’s

first through fifth causes of action are asserted against the City. In King, the court found

the plaintiff’s “cause of action for breach of contract [to be] based on the Kings’

submission of the High Density Tract Map to the planning commission and city council,”

whereas here Area 51’s first through fifth causes of action against the City are based on

an alleged act of breach of contract. (King, supra, 157 Cal.App.4th at p. 272.) In Vivian,

the court held that, because the plaintiff was trying to “impose liability on [the defendant]

for having made her statements to the internal affairs investigators and in her family court

papers,” the plaintiff’s action was “ ‘based on’ that activity and [thus] [came] within the

scope of section 425.16.” (Vivian, supra, 214 Cal.App.4th at p. 274.) Here, Area 51 is

not attempting to impose liability on the City for “having made . . . statements . . . .”

(Ibid.) The communicative acts by others preceding or otherwise made in connection

with the City’s alleged breach of contract are merely collateral to, or evidence that may

be probative of, Area 51’s theories of liability. (See Wilson, supra, 6 Cal.App.5th at

pp. 831–832, rev. granted; King, supra, 157 Cal.App.4th at p. 272.)

In Digerati Holdings, the court held the challenged cause of action arose out of

“statements . . . made in anticipation of a lawsuit,” not out of a breach of an agreement, as

alleged here. (See Digerati Holdings, supra, 194 Cal.App.4th at pp. 887–888.) The

court in Feldman held as protected activities the defendant’s “threats [to evict the

plaintiff], the service of the three-day notice, and the filing of the unlawful detainer

action.” (Feldman, supra, 160 Cal.App.4th at p. 1484.) But here, Area 51 is not alleging

any conduct by the City connected to the pursuit of litigation or possible litigation; rather,

as stated in detail above, it is alleging the City ended an alleged agreement to license the

NWT to Area 51 upon any confirmation by “soft hold,” thus interfering with Area 51’s

third-party agreements. Finally, in City of Costa Mesa the court held the plaintiff was

“suing for relief based on the oral statements, not challenging the underlying acts (the



particular type of action [e.g., breach of contract claims] from its operation.” (See

Navellier, supra, 29 Cal.4th at p. 92.)

16

refusal of the City and its employees to issue licenses),” and the action thus arose from

protected activity within the statute. (City of Costa Mesa, supra, 214 Cal.App.4th at

p. 375.) In contrast, Area 51 is indeed challenging the City’s underlying act of refusing

to license. That conduct is the gravamen of each of the first five claims it asserts against

the City. And as noted above, the surrounding communications are merely evidence of

its refusal.

In Vasquez, following a vote by the Montebello City Council in favor of entering a

municipal waste disposal contract with a private party, it then came to light that some of

those members may have had conflicts of interest due to certain financial contributions to

their campaigns, among other things. (Vasquez, supra, 1 Cal.5th at pp. 413–416.)

Although the district attorney declined to prosecute the members of the city council, the

City of Montebello sued them along with the city administrator who helped negotiate the

contract terms, alleging a single cause of action that charged unlawful conflict of interest

pursuant to Government Code section 1090. (Vasquez, supra, at pp. 413–415.) The

defendants met the claim with an anti-SLAPP motion, which the trial court denied. (Id.

at p. 415.) After an affirmance by the Court of Appeal, the California Supreme Court

reversed, holding “the council members’ votes, as well as statements made in the court of

their deliberations at the city council meeting where the votes were taken, qualify as ‘any

written or oral statement made before a legislative . . . proceeding.’ (§ 425.16,

subd. (e)(1).)” (Vasquez, supra, at pp. 422–423.) The court further held “[a]nything [the

council members] or City Administrator Torres said or wrote in negotiating the contract

qualifies as ‘any written or oral statement or writing made in connection with an issue

under consideration or review by a legislative . . . body . . . .’ (§ 425.16, subd. (e)(2).)”

(Vasquez, supra, at p. 423.) Unlike the council members’ votes or the administrator’s

negotiations in Vasquez, the City’s action in allegedly breaching an agreement here was

not itself protected activity under the statute. (See id. at pp. 422–423.)

17

b. The Individual City Defendants and the PM Defendants

The fact we can find some unprotected conduct at the root of the first through fifth

causes of action does not end our step one analysis of those claims. Under the rule in

Baral, we must disregard the unprotected conduct and focus on whether any nonincidental

protected conduct is charged, even just in part. (Baral, supra, 1 Cal.5th at

p. 396.) While we view the gravamen of the first through fifth causes of action, at

bottom, as an effort to hold the City accountable for failing to make space available at

NWT on dates reserved by Area 51, we reach a different conclusion with respect to the

Individual City Defendants and the PM Defendants. Because we cannot say that the

communicative acts alleged as liability-producing conduct by the Individual City

Defendants and the PM Defendants are merely “incidental” to the claims on which they

are named—to the contrary, those acts are the basis for suing them on an agency theory—

we think that, as against them, the first through fifth causes of action arise from protected

activity under section 425.16, subdivision (e)(2).

12



Vasquez provides some guidance here. In that case, as noted above, the Supreme

Court found that the allegedly corrupt conduct (voting for a municipal waste hauling

contract, in the case of city council member defendants, and negotiating it, in the case of

a city administrator defendant) arose from protected activity. The Vasquez opinion draws

a distinction between, on the one hand, claims seeking to impose liability against a

governmental entity, and, on the other, claims seeking to impose liability for the

expressive activity of officials through whom a government entity must act. In doing so,

the Court noted the “distinction between action taken by a government body and the

expressive conduct of individual representatives” previously recognized in San Ramon.

(Vasquez, supra, 1 Cal.5th at p. 425, citing San Ramon, supra, 125 Cal.App.4th 343.) In

San Ramon—which found the anti-SLAPP statute inapplicable to claims against the

board of a county employees’ retirement association—a public entity, the board itself,



12 Having found section 425.16, subdivision (e)(2) to apply, we need not, and do

not, decide whether section 425.16, subdivision (e)(4) also applies.

18

was being sued for making a pension contribution decision. Pointing out that no

individuals were sued there, the Supreme Court rejected the plaintiffs’ contention that

applying the anti-SLAPP statute to the allegedly corrupt conduct of the individual

defendants in Vasquez would unduly insulate governmental action from legal

accountability. “It is not necessary to sue government officers in their personal capacities

to challenge the propriety of a government action,” the court explained. (Vasquez, supra,

1 Cal.5th at p. 426.)

We agree with the observation made in a supplemental brief filed by the City and

the Individual City Defendants that Vasquez “does for claims that mix together codefendants

what Baral . . . did for causes of action that mix together protected and

unprotected conduct: [I]t emphasizes that each person’s conduct is to be analyzed

separately.” A party-by-party mode of analysis makes a difference here. While the thrust

of the first five causes of action as against the City itself is an alleged breach of contract,

Area 51 does not allege that the Individual City Defendants or the PM Defendants were

themselves contracting parties; the sole basis for asserting liability against these other

parties is what they did on behalf of the City, and as alleged here, that conduct is

expressive in nature. For these parties—the PM Defendants via Elgarico’s March 11

email confirming reserved dates, and the Individual City Defendants via Mocanu’s May

19 email announcing that the City’s “relationship with Area 51 is over”—the sole basis of

their alleged liability appears to be communication, either in saying things that formed an

alleged contract with the City, or in saying things that announced the end of that contract.

Under a plain language reading of the anti-SLAPP statute, all of these communicative

acts qualify as “written or oral statement[s] or writing[s] . . . made in connection with an

issue under consideration . . . by a[n] . . . executive . . . body.” (See § 425.16,

subd. (e)(2).)

We find unpersuasive Area 51’s rejoinder that there was no “official proceeding”

in play here and thus that subdivision (e)(2) of the statute has no application. Area 51

alleges that the City, acting through the Individual City Defendants and the PM

19

Defendants, committed to issue a license to Area 51 to use space in the NWT and then

refused to honor that promise. This theory of liability rests on Elgarico’s March 12

confirmation email and the discussions between Russo and Mocanu (mentioned in

Mocanu’s May 19 email) that led to the end of the City’s relationship with Area 51.

Given Area 51’s agency allegations, it can fairly be inferred that all of this

communicative activity—of necessity—took place pursuant to Russo’s executive

authority as City Manager. To be deemed “under consideration” by an “executive body,”

a matter must be given “ ‘ “ ‘attentive thought, reflection, [or] meditation.’ ” ’ ” (City of

Costa Mesa, supra, 214 Cal.App.4th at p. 373.) There is no talismanic significance to

“official or formal proceedings.” (Ibid., italics added.) Something more than ministerial

action is required, but any form of deliberative executive decision-making will suffice.

(Ibid.; see Maranatha Corrections, LLC v. Department of Corrections & Rehabilitation

(2008) 158 Cal.App.4th 1075, 1085.) Here, the process by which Russo arrived at and

implemented a decision about licensing the City’s property—working informally with,

and through, others—cannot be described as ministerial.

Area 51’s fall-back argument is that the alleged communicative acts by the

Individual City Defendants and the PM Defendants were not undertaken in connection

with a “public issue.” This secondary line of argument is also contrary to the language of

the statute, plainly read. The text of section 425.16, subdivision (e)(2) contains no

“public issue” or “issue of public interest” requirement beyond a showing the

communication was made in connection with an issue under consideration by an

executive body. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th

1106, 1119 [“[A] plain reading of subdivision (e)(1) and (2) . . . imports no additional

‘public issue’ requirement[.]”].) To satisfy the “official proceeding” language in section

425.16, subdivision (e)(2), no additional showing need be made if any written or oral

statement in connection with an issue under consideration by an executive body is

involved. (Briggs, supra, at pp. 1116–1117 [§ 425.16, subd. (e)(2) protects “ ‘free speech

and petition conduct aimed at advancing self government, as well as conduct aimed at

20

more mundane pursuits’ ”].) Substantive inquiry into the nature of the issue is not

necessary as long as some type of official decision-making, formal or informal, is

involved. Under section 425.16, subdivision (e)(2), the pendency of an issue before a

government body is a proxy for its character as public in nature.

2. The Sixth Cause of Action

Our analysis of the sixth cause of action, a negligent misrepresentation claim, is

more straightforward than it is for the first five because this claim is based purely on

expressive conduct. In the sixth cause of action, Area 51 alleges: “Plaintiff was harmed

because Defendants negligently misrepresented an important fact—namely that their

confirmed reservations of the Property [in the March email] would be honored.” For the

reasons explained above in section II.B.1 with respect to section 425.16,

subdivision (e)(2), we conclude that the alleged misrepresentations on which the sixth

cause of action is based constitute anti-SLAPP protected activity.

C. The Second Step of the Anti-SLAPP Analysis

Having concluded that all six of Area 51’s causes of action arise from protected

activity—in part, or entirely—we proceed to the second step of the anti-SLAPP analysis

for the first five causes of action insofar as they are pleaded against the Individual City

Defendants and the PM Defendants, and for the sixth cause of action insofar as it is

pleaded against all Defendants. Because we conclude that the first though fifth causes of

action do not involve protected speech or actions by the City, we do not reach the second

prong of the anti-SLAPP analysis of whether Area 51 can show a probability of

prevailing on those claims as pleaded against it alone. (City of Alhambra v. D’Ausilio

(2011) 193 Cal.App.4th 1301, 1309.)

“We . . . evaluate the defendants’ evidence only to determine if it defeats that

submitted by the plaintiff as a matter of law.” (Wilson, supra, 6 Cal.App.5th at pp. 831–

833, rev. granted.) “[I]n order to establish the requisite probability of prevailing

[citation], the plaintiff need only have ‘ “stated and substantiated a legally sufficient

claim.” ’ [Citation.] ‘Put another way, the plaintiff “must demonstrate that the complaint

21

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.” ’ ”

(Navellier, supra, 29 Cal.4th at pp. 88–89.) It was not enough simply to replead, as Area

51 did after Defendants’ demurrer was sustained. (DuPont Merck Pharmacuetical Co. v.

Superior Court. (2000) 78 Cal.App.4th 562, 568.) To survive Defendants’ motion, the

burden was on Area 51 to come forward with admissible evidence showing a probability

of prevailing on each claim exposed to step two anti-SLAPP analysis, enough to make

out a viable prima facie case at trial. That burden was not particularly high (Navellier,

supra, 29 Cal.4th at p. 94 [“claims with the requisite minimal merit may proceed”]), but

we conclude Area 51 failed to meet it in the following respects.

22

1. The First Through Fifth Causes of Action As Pleaded Against the

Individual City Defendants and the PM Defendants

Area 51’s evidentiary showing in opposition to the anti-SLAPP motion is

embodied in the declaration of its CEO, John Walker. The gist of the theory offered in

this declaration appears to be that, following the termination of a “Long Term

Agreement” between the City and Area 51 in October 2013, the course of dealing

between the parties from October 2013 to May 2014 created some sort of contract or

contracts under which the City was bound to provide space at NWT whenever PM Realty

“confirmed” the availability of that space, but that the City reneged on this commitment

due to some personal animus “the Defendants have against [him]” and a desire to do

business with someone else. As pertinent to the first cause of action, the Walker

declaration makes a prima facie case under a theory of breach of a contract implied from

conduct, based on his sworn assertions about settled practice established by many years’

history of doing business with the City. But as noted above, Area 51 does not allege—

and Walker does not suggest—that any of the Individual City Defendants or the PM

Defendants was a party to such a contract and therefore liable for its breach. We see no

basis in law for imposing breach of contract liability on a stranger to this alleged contract

under an agency theory, and the Walker declaration does not supply such a basis in fact.

13



Nor are we persuaded there is enough here to show extra-contractual liability

based on the second through fifth causes of action as alleged against the Individual City

Defendants or the PM Defendants. The Individual City Defendants contend that they

have statutory immunity on various grounds, and all Defendants argue that Area 51 has

failed even to plead the requisite elements of these claims sufficiently, as shown by the

sustaining of their general demurrer. In response, Area 51 posits that no Defendant is

immune from liability, but does little to support this contention or to rescue its extracontractual

claims, other than to recite claim elements from the case law, cite conclusory



13 Cf. 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency, § 196, pp. 248–

249 (agent not ordinarily liable on written contract he executes on behalf of a disclosed

principal, absent bad faith); Rest.3d, Agency, § 6.01.

23

statements drawn from its complaint, and refer to evidence not properly brought before

the trial court or this court.14 We need not canvass the applicable law with respect to

each of the identified defects in Area 51’s theories of extra-contractual liability in the first

through fifth causes of action and then proceed to analyze every thread of the parties’

contending positions. It suffices to say, as a matter of law, that the Walker declaration

(1) fails to show any wrongful act that is sufficiently independent of the contract duty

Area 51 sues upon to support the alleged interference torts, even assuming such a

contract duty could be established (which defeats the second, third, and fourth causes of

action);

15 and (2) fails to “explain with any reasoned argument or authority how

[anything alleged here was an] unlawful, unfair or fraudulent business act[] or practice[]

within the meaning of the unfair competition law” (which defeats the fifth cause of

action).

16

2. The Sixth Cause of Action

We agree with Defendants that Area 51 has not shown a prima facie case of

liability on the sixth cause of action, with respect to any of them. Neither the complaint

nor the showing Area 51 made in the Walker declaration demonstrates with adequate

particularity that a false statement was made without reasonable grounds to believe in its

truth, accompanied by justifiable reliance and resulting damages. (Intrieri v. Superior



14 The extra-record references are in violation of California Rules of Court, rule

8.124(b)(3). We therefore do not consider them.

15 Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1991) 7 Cal.4th 503,

515 (“conduct amounting to a breach of contract becomes tortious only when it also

violates an independent duty arising from principles of tort law”); Korea Supply Co.

v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 (“a plaintiff seeking to

recover damages for interference with prospective economic advantage must plead

and prove as part of its case-in-chief that the defendant’s conduct was ‘wrongful by

some legal measure other than the fact of interference itself’ ”).

16 Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist.

(2003) 106 Cal.App.4th 1219, 1244.

24

Court (2004) 117 Cal.App.4th 72, 86 [describing required elements of negligent

misrepresentation claim]; see Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513,

519 [“Each element in a cause of action for fraud or negligent misrepresentation must be

factually and specifically alleged”].) While inferences about these required elements

might be drawn from the facts Area 51 has shown, and while, by a series of further

inferences, Area 51’s showing might support one or more of the first five causes of action

as pleaded against the City alone, we decline to fill in the details necessary to support the

misrepresentation claim alleged in the sixth cause of action.

D. Attorney Fees and Costs

Defendants argue they are entitled to attorney fees and costs as prevailing parties

on their anti-SLAPP motion. Area 51 counters with its own request for attorney fees

because, “[g]iven the continuous flow of unambiguous case law in the past decade, any

reasonable attorney should be aware that a business dispute that simply mentions

incidental protected activity is not subject to the anti-SLAPP statute.”

Subdivision (c)(1) of section 425.16 provides in full: “Except as provided in

paragraph (2) [which is not relevant here], in any action subject to subdivision (b), a

prevailing defendant on a special motion to strike shall be entitled to recover his or her

attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or

is solely intended to cause unnecessary delay, the court shall award costs and reasonable

attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (Italics

added.) “A defendant that successfully moves to strike a plaintiff’s cause of action,

whether on merits or non-merits grounds, has ‘prevailed’ on the motion, and therefore is

entitled to attorney’s fees and costs.” (Barry, supra, 2 Cal.5th at p. 327.) “A ‘prevailing

defendant’ within the meaning of [the statute] includes a defendant whose anti-SLAPP

motion was granted as to some causes of action but not others.” (Huntingdon Life

Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th

1228, 1267 (Huntingdon); see also Moran v. Endres (2006) 135 Cal.App.4th 952, 954–

25

956 [upholding the trial court’s denial of attorney fees to defendant after striking only one

of plaintiffs’ 11 causes of action under the anti-SLAPP statute].)

“ ‘The anti-SLAPP statute reflects the Legislature’s “strong preference for

awarding attorney fees to successful defendants.” [Citation.] The term “prevailing

party” must be “interpreted broadly to favor an award of attorney fees to a partially

successful defendant.” [Citation.] However, a fee award is not required when the

motion, though partially successful, was of no practical effect. [Citation.] “[A] party

who partially prevails on an anti-SLAPP motion must generally be considered a

prevailing party unless the results of the motion were so insignificant that the party did

not achieve any practical benefit from bringing the motion. The determination whether a

party prevailed on an anti-SLAPP motion lies within the broad discretion of [the] trial

court.” [Citation.]’ ” (Singletary, supra, 206 Cal.App.4th at p. 782; see also Huntingdon,

supra, 129 Cal.App.4th at p. 1267 [“ ‘Although this court has the power to fix attorney

fees on appeal, the better practice is to have the trial court determine such fees.’ ”].)

Under these standards, we conclude that, since the Individual City Defendants and

the PM Defendants are the prevailing parties on all causes of action, they are entitled to

awards of fees and costs reasonably allocable to achieving that result, including fees and

costs incurred on appeal. With respect to the request for attorney fees and costs from the

City, it too is a victorious party in part, so we conclude that it may be entitled to an award

of fees and costs reasonably allocable to achieving that victory, including appellate fees

and costs. (See ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020

[partial success by defendant filing anti-SLAPP motion generally “reduces but does not

eliminate the entitlement to attorney fees”]; see also Moran v. Endres, supra, 135

Cal.App.4th at pp. 954–956 [fees and costs may be denied to a partially prevailing

defendant whose motion achieved little or no practical benefit].) The trial court is best

positioned to determine whether to award fees and costs to the City, and to determine, as

to all Defendants, the appropriate allocations and the amounts reasonably awardable.

(See Huntingdon, supra, 129 Cal.App.4th at p. 1267.)

26

Finally, as to the fee request from Area 51, it is a prevailing party in part. But as a

prevailing plaintiff, Area 51 is only entitled to fees if the City’s motion to strike was

“frivolous” or “solely intended to cause unnecessary delay.” (§ 425.16, subd. (c)(1).) “A

determination of frivolousness requires a finding the anti-SLAPP ‘motion is “totally and

completely without merit” (§ 128.5, subd. (b)(2)), that is, “any reasonable attorney would

agree such motion is totally devoid of merit.” ’ ” (Moore v. Shaw (2004) 116

Cal.App.4th 182, 199.) In light of the developing case law surrounding the complex

issues presented in the City’s motion (which we have discussed in detail above), we

conclude the motion, as a matter of law, does not meet the requisite frivolousness

standard: When the City filed its motion, reasonable attorneys could have disagreed as to

its merits. For the same reason, we see no basis to conclude the motion was filed solely

for the purpose of causing unnecessary delay. Accordingly, no award of fees to Area 51

is appropriate here.

The trial court’s order denying Defendants’ anti-SLAPP motion is affirmed with

respect to Area 51’s first five causes of action as pleaded against the City. In all other respects, the court’s order denying the motion is reversed, and the case is remanded for consideration of attorney fees and costs awardable as set forth above.