Golden Gate Land Holdings LLC v. Direct Action Everywhere

• Decision Date: 13 July 2022
• Docket Number: A163315
• Citation: 81 Cal.App.5th 82,296 Cal.Rptr.3d 768
• Parties: GOLDEN GATE LAND HOLDINGS LLC et al., Plaintiffs and Respondents, v. DIRECT ACTION EVERYWHERE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

81 Cal.App.5th 82

296 Cal.Rptr.3d 768

GOLDEN GATE LAND HOLDINGS LLC et al., Plaintiffs and Respondents,

v.DIRECT ACTION EVERYWHERE, Defendant and Appellant.

A163315

Court of Appeal, First District, Division 1, California.

Filed July 13, 2022

Counsel for amici curiae on behalf of Appellant: John David Loy, David E. Snyder, Monica N. Price, First Amendment Coalition, for amici curiae First Amendment Coalition, American Civil Liberties Union of Northern California, California News Publishers Association, Californians Aware.

Counsel for amici curiae on behalf of Appellant: Kelsey C. Skaggs, for amici curiae Amazon Watch, the Civil Liberties Defense Center, Climate Defense Project, the Mosquito Fleet, Portland Rising Tide, and the Sierra Club.

Counsel for Plaintiffs and Respondents: Robert R. Moore, Michael J. Betz, Alexander J. Doherty, Allen Matkins Leck Gamble Mallory & Natsis LLP.

Humes, P.J. Defendant Direct Action Everywhere (Direct Action) appeals from a trial court order denying an anti-SLAPP¹ motion seeking to strike claims brought against it by plaintiffs Golden Gate Land Holdings, LLC, and two related corporate entities (collectively, Golden Gate).² We affirm. In doing so, we hold that claims alleging that an advocacy organization is vicariously liable for a third party's illegal conduct may be subject to a demurrer or other summary challenge, but they cannot be stricken under the anti-SLAPP statute unless the organization's alleged liability is premised on constitutionally protected activity.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Golden Gate, which operates a horse racing track in Berkeley, filed this suit against Direct Action, an animal rights organization, and four individual defendants who are not parties to this appeal.³ The complaint's general allegations asserted that the four individuals, who were "affiliated with [Direct Action]," "climbed over [a] fence surrounding the horse racing track at [Golden Gate Fields (GGF)], trespassing on the GGF property," "lit incendiary devices that sent purple smoke into the air," "[lay] down directly on the racing track," and "connected their arms using PVC piping to make it difficult, if not impossible, for them to be physically removed." The "trespassers remained on the track for several hours," preventing scheduled horse races from taking place. Eventually, "the trespassers were removed by the police" and "criminally charged."

The complaint included two causes of action: one for trespass, and the other for intentional interference with prospective economic relations, in that the trespass "proximately caused [Golden Gate] to incur economic harm." The complaint also sought to "enjoin[ ] Defendants, their agents, officers, directors, employees, and those acting in aid of or in concert with them from trespassing on GGF."

Allegations tying Direct Action to the trespass asserted that the defendants were affiliated with each other and liable under various theories of relationship liability. Specifically, the complaint alleged that "each of the defendants ... was ... the agent, co-conspirator, aider and abettor, employee, representative, co-venturer, and/or alter ego of each and every other defendant, and in doing the thing hereinafter mentioned was acting within the course and scope of his, her, or its authority as such agent, co-conspirator, aider and abettor, employee, co-venturer, partner, and representative, and with the permission and consent of such other defendants." The complaint did not specify the circumstances upon which Direct Action's alleged vicarious liability was based.

Direct Action responded to the complaint by filing an anti-SLAPP motion, claiming it was sued for engaging in constitutionally protected activity. It maintained it was sued "for opposing [Golden Gate's] horse racing business, gathering signatures on a petition ... to close [Golden Gate's] business, and allegedly organizing protests against the horse track." It claimed it "had no involvement in the civil disobedience that unfolded at the track." According to our record, Direct Action did not demur to the complaint or, with the exception of the anti-SLAPP motion, file any other dispositive motion.

The trial court denied the anti-SLAPP motion, ruling that Direct Action failed to meet its initial burden to show that the complaint challenged protected activity. As a result, the court did not address whether Golden Gate had demonstrated a probability of prevailing on its claims.

II.

DISCUSSION

A. General Legal Standards

The anti-SLAPP statute allows a defendant to move to dismiss "certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity." ( Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1420–1421, 50 Cal.Rptr.3d 65.) The heart of the statute states: "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." ( § 425.16, subd. (b)(1).)

In deciding whether to grant a defendant's anti-SLAPP motion, courts engage in a two-step, burden-shifting analysis. ( Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061, 217 Cal.Rptr.3d 130, 393 P.3d 905 ( Park .) Under the first step, a court considers whether the defendant has made "a prima facie showing that the plaintiff's ‘cause of action ... aris[es] from’ an act by the defendant ‘in furtherance of the [defendant's] right of petition or free speech ... in connection with a public issue.’ " ( Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21, 109 Cal.Rptr.3d 329, 230 P.3d 1117, quoting § 425.16, subd. (b)(1).) To make such a showing, the defendant need not demonstrate that its actions were protected as a matter of law, but need only establish a prima facie case that the actions fell into one of the categories listed in section 425.16, subdivision (e). ( Flatley v. Mauro (2006) 39 Cal.4th 299, 314, 46 Cal.Rptr.3d 606, 139 P.3d 2.) If the defendant cannot make such a showing, the anti-SLAPP motion must be denied, and the plaintiff is entitled to continue to litigate the cause of action. (See ibid. ; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80–81, 124 Cal.Rptr.2d 519, 52 P.3d 695.)

But if the defendant can make such a showing, the analysis proceeds to the second step where the burden shifts to the plaintiff to demonstrate "that there is a probability that [it] will prevail on the [cause of action]." ( § 425.16, subd. (b)(1).) To meet this burden, " ‘the plaintiff "must demonstrate that the [cause of action] 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 v. Sletten (2002) 29 Cal.4th 82, 88–89, 124 Cal.Rptr.2d 530, 52 P.3d 703.) If the plaintiff meets this burden, the anti-SLAPP motion must be denied, and the plaintiff is entitled to continue to litigate the cause of action. (See Flatley v. Mauro, supra , 39 Cal.4th at p. 332 & fn. 16, 46 Cal.Rptr.3d 606, 139 P.3d 2.)

Thus, an anti-SLAPP motion may be granted only if the defendant first shows that its conduct was constitutionally protected and the plaintiff then fails to "demonstrate its claims have at least ‘minimal merit.’ " ( Park, supra , 2 Cal.5th at p. 1061, 217 Cal.Rptr.3d 130, 393 P.3d 905.) Stated another way, a trial court may grant an anti-SLAPP motion—i.e., strike a claim—only if it finds, after applying both steps of the analysis, that the claim is based on protected activity and lacks minimal merit. But a trial court must deny an anti-SLAPP motion—i.e., allow the claim to proceed—if it finds, after applying either step of the analysis, that the claim is not based on protected activity or has at least minimal merit. We review de novo the denial of an anti-SLAPP motion. ( Id. at p. 1067, 217 Cal.Rptr.3d 130, 393 P.3d 905.)

B. The Trial Court Properly Denied the Anti-SLAPP Motion Because Direct Action Failed To Make a Prima Facie Showing that the Claims Against It Arose from Protected Activity.

Direct Action contends that "Golden Gate sued [it] over its speech in public forums on an issue of public interest." We cannot agree. The only fair reading of the complaint is that the wrong on which the claims against Direct Action are based was the organization's alleged involvement in the illegal trespass, not its speech or petitioning activity. We therefore agree with the trial court that Direct Action failed to satisfy its burden under the first step of the anti-SLAPP analysis.⁴

The anti-SLAPP statute's "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. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on [protected activity]," and "the mere fact an action was filed after protected activity took place does not mean it arose from that activity." ( City of Cotati v. Cashman, supra , 29 Cal.4th at pp. 76–78, 124 Cal.Rptr.2d 519, 52 P.3d 695.)

In Park, supra , 2 Cal.5th 1057, 217 Cal.Rptr.3d 130, 393 P.3d 905, our state Supreme Court discussed the "requisite nexus between the claims an anti-SLAPP motion challenges and protected activity." ( Id. at p. 1062, 217 Cal.Rptr.3d 130, 393 P.3d 905, italics and some capitalization omitted.) "[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...