Filed 7/17/13 Living Green Growers v. Valley Center CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



LIVING GREEN GROWERS, LLC,                                          D062450

         Cross-complainant and Respondent,

         v.                                                         (Super. Ct. No. 37-2011-00057671-
                                                                     CU-CO-NC)
VALLEY CENTER II, LP et al.,

         Cross-defendants and Appellants.


         APPEAL from an order of the Superior Court of San Diego County, Thomas P.

Nugent, Judge. Affirmed.

         Hill, Farrer & Burrill, Neil D. Martin and Grant K. Peto for Cross-defendants and

Appellants.

         Law Offices of Joshua G. Blum, Joshua G. Blum and Matthew C. Heerde for

Cross-complainant and Respondent.


         Valley Center II, LP (VCII) filed a complaint against several defendants, including

Living Green Growers, LLC (Growers), seeking a declaration that VCII owned certain

nursery plants and related materials on VCII's property. Shortly after, Growers filed a
cross-complaint, alleging claims against VCII, its principal Randall Smith, and two of

Smith's business associates, David Judaken and Gonzalo Nieto (collectively cross-

defendants).1

      Cross-defendants moved to dismiss Growers' cross-complaint under the anti-

SLAPP statute. (Code Civ. Proc., § 425.16 (§ 425.16).) The court denied the motion,

finding Growers' claims arose out of a commercial dispute regarding plants and were not

based on activities protected by the anti-SLAPP statute.

      On appeal, cross-defendants contend the court erred in denying their anti-SLAPP

motion on two causes of action alleged in Growers' cross-complaint: the seventh and

ninth causes of action. We reject these contentions and affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

                                  Background Summary

      VCII owns property in Valley Center used to grow commercial nursery plants.

Randall Smith is VCII's principal. For ease of reference and where appropriate, we shall

refer collectively to Smith and VCII as "Smith."

      In late 2010 or early 2011, Smith had discussions with David Itzikman and

Michael Gill about a proposed business transaction. The parties discussed that Itzikman

and Gill would form a plant wholesaler business and use Smith's property to grow plants,

and in exchange they would assist Smith with some of his financial obligations. Shortly



1      Jo Fusion, Inc. was also a cross-complainant and brought claims against VCII and
various parties. However, those claims are not a subject of this appeal. We thus do not
discuss these claims, except as they are relevant to the issues before us.
                                            2
after, Itzikman and Gill formed a limited liability company (Growers) and then placed

plants and related supplies on Smith's property. For the next several months, Growers

maintained those plants on Smith's property.

       On about July 15, 2011, Smith retained a financial consultant, cross-defendant

Nieto. Two weeks later, in late July, Smith, Nieto, and another business associate (cross-

defendant Judaken2) refused to permit Growers to have access to Smith's property and

claimed ownership interests in the plants.

       The next month, on August 30, 2011, Smith's entity (VCII) filed a complaint

against Growers, Itzikman, and Gill, seeking a declaratory judgment as to the parties'

respective interest in Smith's property and the disputed plants.

                                Growers' Cross-Complaint

       Three months later, on December 1, 2011, Growers filed a cross-complaint against

Smith, VCII, Judaken, and Nieto. Growers' cross-complaint contained the following

factual allegations.

       In 2010, Smith was having substantial personal and financial difficulties, and had

abandoned and/or mismanaged his business ventures. One of those ventures was the

operation of a retail nursery on Smith's rural property.

       In about February 2011, Itzikman and Gill approached Smith with an offer to enter

into an agreement whereby Itzikman and Gill would assume Smith's payments on a

secured loan in exchange for Smith allowing Itzikman to use a portion of the property for


2     The record does not specify Judaken's precise relationship with Smith, but it
appears Judaken later acquired an interest in Smith's property through a receivership.
                                              3
his own business (Growers). While the parties were discussing the details of this

proposal and as consideration for services and other assistance, Smith agreed that

Growers could use Smith's property to store plants, soil, and supplies, and that Growers

would be granted unfettered access to the property to inspect, grow, maintain, and

remove the plants as necessary to fulfill its customer orders.

       By May 2011, Smith was still in personal and financial distress, but had not yet

signed these proposals. In a meeting attended by Itzikman, Gill and Smith, Smith

allegedly reiterated his earlier representations that he had no interest in Growers' plants

stored on Smith's property, those plants could remain on the property, and Growers had

permission to enter the property to maintain and remove the plants. Based on these

representations, Growers continued to expend efforts and money to maintain its plants.

       However, in late July 2011, "Cross-Defendants [Smith, Nieto, and Judaken]

threatened [Growers], and its laborers, and prevented them from accessing [Smith's

property], wrongfully converted [Growers'] plants, soil, and supplies, falsely claimed

ownership interest in its plants, and intentionally neglected and failed and refused to

monitor and maintain the plants belonging to [Growers] . . . , causing such plants to

deteriorate, and causing [Growers] to breach its contracts with customers and damaging

its business and reputation."

       Based on these allegations, Growers' cross-complaint asserted 12 causes of action.

       The first three causes of action and the eighth cause of action concern primarily Jo

Fusion, Inc.'s claims, and are not relevant here. The fourth cause of action is Growers'

breach of contract claim against VCII. The fifth and sixth causes of action are fraud-

                                              4
based claims against VCII and Smith, alleging that these parties intentionally

misrepresented and/or made false promises that Growers could place its plants, soil, and

supplies on the property, and Growers relied on those representations to its detriment.

       Growers asserted the seventh, ninth, tenth, and eleventh causes of action against

all four cross-defendants: VCII, Smith, Judaken, and Nieto. The seventh cause of action

alleged conversion or trespass to chattels. The ninth cause of action alleged intentional

interference with contractual relations. The tenth and eleventh causes of action alleged

intentional and negligent interference with prospective economic relations. Although

labeled differently and each may require different levels of proof on various elements, the

essence of each of these claims was the allegation that cross-defendants improperly

claimed ownership interests in Growers' plants and wrongfully prevented Growers and its

workers from accessing and maintaining its plants on Smith's property, thereby causing

the plants to lose value and resulting in Growers' inability to fulfill its own contracts with

its customers.

       Specifically, each of these four causes of action incorporated the allegation that:

          "[I]n late July 2011, Cross-Defendants, and each of them, threatened
          [Growers], and its laborers, and prevented them from accessing
          [Smith's] property, wrongfully converted its plants, soil and supplies,
          falsely claimed ownership interest in its plants, and intentionally
          neglected and failed and refused to monitor and maintain the plants
          belonging to [Growers], despite demand and their false assurances
          that they were doing so, causing such plants to deteriorate, and
          causing [Growers] to breach its contracts with customers and
          damaging its business and reputation."

Additionally, the seventh and ninth causes of action contain the following similar

paragraph:

                                              5
          "Beginning in August 2011, Cross-Defendants, and each of them,
          knowingly and intentionally threatened GROWERS, and its laborers,
          and prevented them from accessing the plants, wrongfully took
          possession of the property and converted it for their own use, falsely
          claimed ownership interest in the plants, and intentionally neglected
          and failed and refused to monitor and maintain the plants belonging
          to GROWERS, despite demand and their false assurances that they
          were doing so. . . ."3

The tenth and eleventh causes of action contain an almost identical paragraph, but omit

the phrase "Beginning in August 2011." Other than these allegations, Growers did not

identify any additional wrongful conduct or activities by cross-defendants that formed the

basis of the trespass/conversion or interference claims alleged in the seventh, ninth, tenth,

and eleventh causes of action.

       The twelfth cause of action sought declaratory relief, seeking an order that

Smith/VCII have no ownership interest in Growers' plant inventory.

                          Cross-Defendants' Anti-SLAPP Motion

       Shortly after Growers filed this cross-complaint, cross-defendants moved to

dismiss the pleading under the anti-SLAPP statute. (§ 425.16.) They argued that the

cross-complaint was subject to the anti-SLAPP statute because the "only things that

Cross-Defendants have done to claim an ownership interest in the plants" were to (1) file

the underlying complaint for declaratory relief and (2) respond after Growers called the

sheriff's department. They further argued Growers would be unable to establish a

probability of prevailing on its claims for various reasons, including that cross-


3      In the ninth cause of action, this paragraph begins "Notwithstanding the above"
and then states "beginning in August 2011." However, this distinction is not material for
our purposes.
                                              6
defendants' actions—filing a lawsuit and communicating with the sheriff—constituted

privileged litigation activity.

       In support of this motion, each of the cross-defendants submitted a declaration.

       In his declaration, Smith denied that he agreed to permit Growers or Itzikman to

grow plants on his property, and also denied that he contacted Growers, Itzikman or Gill

to claim an ownership interest in the plants. He said he retained an attorney "[o]n or

about August 8, 2011 . . . ."

       In his declaration, Nieto said his only actions with respect to claiming an interest

in the disputed plants were: (1) retaining an attorney for Smith on August 8, 2011; (2)

writing a letter to the sheriff's department on August 30, 2011 informing the sheriff that

Growers had no legal right to enter Smith's property; and (3) twice speaking on the

telephone with Itzikman on August 30, 2011, in which he told Itzikman to have his

counsel contact Smith's counsel.

       In his declaration, Judaken similarly claimed that his only actions pertaining to the

disputed plants occurred in August 2011 during communications with the sheriff's

department and his attorney. Specifically, he said that: "On or about August 30, 2011, I

learned that Itzikman and [Gill] were attempting to get through the locked gates on

[Smith's] [p]roperty. . . . I spoke with the sheriff's department and told them that

Itzikman and Gill did not have a lease for the [property] and that they were trespassing."

[¶] . . . [¶] . . . The only actions that I have taken to claim an ownership interest in the

plants on behalf of [Smith] . . . have been to contact my attorneys regarding this litigation

and the sheriff's department regarding Itzikman and Gill's trespassing on the [property]."

                                               7
       Cross-defendants' attorney also submitted a declaration, stating that he sent a letter

to Growers' counsel and telephoned the sheriff's department in an attempt to prevent

Itzikman and Gill from removing plants from Smith's property until the matter had been

resolved in court.

       In opposition to the anti-SLAPP motion, Growers did not dispute that several of

the activities discussed in cross-defendants' declarations—a letter from cross-defendants'

counsel, cross-defendants' communications with the sheriff in late August 2011, and

cross-defendants' filing of the complaint—were protected SLAPP activities. But

Growers argued its claims against cross-defendants were not based on these activities,

and instead the claims arose from cross-defendants' unprotected actions beginning in late

July 2011.

       In support, Growers relied on the allegations of the cross-complaint (which did not

mention the protected activities) and Itzikman's declaration. Itzikman's declaration stated

in part:

           "[O]n July 27, 2011, without notice, Smith and others on his behalf
           ejected [Growers'] own workers from [Smith's property], where they
           had been caring for [Growers'] plants for the previous four months.
           Moreover, Smith and others on his behalf informed the workers to
           advise [Growers] that the plants were 'no longer' the property of
           [Growers] and now were the property of Smith.

            . . . The following day, on July 28, 2011, I traveled to the [property]
           to access and secure the maintenance of [Growers'] plants. When I
           arrived, I was suddenly informed by Cross-Defendants David
           Judaken and Gonzalo Nieto, that Smith was refusing [Growers] . . .
           any access to its plants for purposes of caring for them or removing
           them to fulfill its contractual obligations. They further informed me
           that Smith was now claiming an ownership interest in [Growers']
           plants and would not allow [Growers] any access to them moving

                                              8
          forward. In addition, Judaken and Nieto informed me that they were
          also claiming an ownership interest in [Growers'] plants through
          their newly formed business relationship with Smith . . . .

           . . . Since that date, Cross-Defendants, through their exclusive
          possession and control of [Growers'] plants have intentionally and/or
          negligently caused them to deteriorate and rendered the property
          valueless in many instances. This resulted in instances where
          [Growers'] customers have returned the plants based on their poor
          condition, causing [Growers] significant damages . . . .

           . . . [The actions alleged in the cross-complaint] all took place well
          before the filing of the complaint in this matter. [¶] . . . [¶] . . . The
          allegations in the Cross-Complaint regarding false claim of
          ownership concern actions taken by Smith that preceded the filing of
          the complaint. Additionally, the allegation of claimed ownership
          was one of several alleged acts of misconduct by Smith involving
          refusing [Growers] and its laborers access to the premises where its
          plants were located, access to the plants, allowing the plants to
          deteriorate, causing [Growers] to breach its contracts with others and
          a host of other activities." (Italics added.)

       In reply, cross-defendants reiterated that the claims were governed by the anti-

SLAPP statute because "the only things they ever did to claim an interest in the plants

were protected activities (sending a letter to counsel before the lawsuit was filed,

responding to the sheriff department after Cross-Complainant called them, and filing the

underlying complaint)."

       After a hearing, the court denied the anti-SLAPP motion, finding cross-defendants

did not meet their burden to show the claims alleged protected activity. The court stated:

"[T]he cross-complaint did not arise out of Cross-defendants' action in filing the

complaint and communicating with the sheriff's department. [¶] Specifically, . . .

[Growers'] claims . . . arose out of a verbal agreement made in February 2011 and the

cross-complaint is replete with allegations of pre-complaint conduct by Cross-

                                              9
defendants." The court also found cross-defendants' anti-SLAPP motion was frivolous

and Growers was entitled to attorney fees. (§ 425.16, subd. (c)(1).)

                                         DISCUSSION

                         I. Generally Applicable Legal Principles

       A special motion to strike under section 425.16 allows a defendant to obtain early

dismissal of a lawsuit that qualifies as a SLAPP. (§ 425.16, subd. (b)(1).) A court

engages in a two-step analysis in determining whether a dismissal is required. (Equilon

Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) First, the court must

determine if the lawsuit falls within the scope of the anti-SLAPP statute. A cause of

action is governed by this statute if it arose from activities that were in furtherance of the

moving party's free speech or petition rights. (Ibid., § 425.16, subd. (b)(1).) The moving

party bears the burden of demonstrating that a cause of action arose from such protected

activity. (§ 425.16, subd. (b)(1).) If the moving party meets this burden, the court then

engages in the second step of the analysis. In this step, the burden shifts to the opposing

party to demonstrate "a probability of prevailing on the claim." (Navellier v. Sletten

(2002) 29 Cal.4th 82, 88 (Navellier).)

       In making these determinations, the trial court considers "the pleadings, and

supporting and opposing affidavits stating the facts upon which the liability or defense is

based." (§ 425.16, subd. (b)(2).) But the court "does not weigh credibility or compare

the weight of the evidence. Rather, the court's responsibility is to accept as true the

evidence favorable to the [party opposing the motion] . . . ." (HMS Capital, Inc. v.

Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) We review de novo the trial court's

                                              10
rulings on an anti-SLAPP motion. (Thomas v. Quintero (2005) 126 Cal.App.4th 635,

645.)

                                         II. Analysis

        In the proceedings below, cross-defendants sought to dismiss all 12 causes of

action in the cross-complaint. On appeal, they challenge the court's denial of their anti-

SLAPP motion only as to two causes of action: (1) the seventh cause of action for

conversion or trespass to chattels; and (2) the ninth cause of action for intentional

interference with contractual relations between Growers and its customers. They argue

that unlike the other causes of action, these claims arose from protected activity because

each includes a paragraph containing the phrase beginning in August 2011. Cross-

defendants contend that their declarations show that the only activities in which they

engaged after August 1, 2011 were constitutionally protected activities (communicating

with the sheriff, directing their counsel to write a letter to Growers, and filing their

complaint), and therefore the seventh and ninth causes of action are necessarily subject to

the anti-SLAPP statute.

        Growers does not dispute that cross-defendants' communications with the sheriff's

department, their counsel's letters, and the filing of the complaint are protected activities

under the anti-SLAPP statute. (See Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.)

However, Growers maintains that its seventh and ninth causes of action were not based

on these activities and thus its claims do not arise from protected actions. In support,

Growers notes: (1) the pleadings do not mention or refer to the constitutionally protected

activities; (2) the seventh and ninth causes of action expressly incorporate the earlier

                                              11
allegations that cross-defendants engaged in wrongful conduct in July 2011; and (3)

Itzikman's declaration supports that each of the defendants (Smith, Judaken, and Nieto)

engaged in wrongful activities beginning in July 28, when they prevented Growers'

workers from entering Smith's property to access Growers' plants, and then continued to

engage in these unprotected activities (e.g., preventing access to the property, failing to

maintain the plants) during August 2011 and beyond.

       We agree with Growers' position.

       In determining whether a claim arises from protected activity, a court must

" 'examine the principal thrust or gravamen of a plaintiff's cause of action to determine

whether the anti-SLAPP statute applies' . . . . We assess the principal thrust by

identifying '[t]he allegedly wrongful and injury-producing conduct . . . that provides the

foundation for the claim.' [Citation.]" (Hylton v. Frank E. Rogozienski, Inc. (2009) 177

Cal.App.4th 1264, 1271-1272, second italics added; see Tuszynska v. Cunningham (2011)

199 Cal.App.4th 257, 269-270.) "The anti-SLAPP statute's definitional focus is [on] the

defendant's activity that gives rise to his or her asserted liability—and whether that

activity constitutes protected speech or petitioning." (Navellier, supra, 29 Cal.4th at p.

92.)

       The fact that a cross-complaint was filed after the cross-defendants engaged in

protected activity or that the cross-complaint was triggered by the protected activity does

not mean the claim "aris[es]" from that activity. (City of Cotati v. Cashman (2002) 29

Cal.4th 69, 77.) Instead, the moving party must show the defendants' activities alleged to

be wrongful and upon which the claim is based constitutes protected activity. (Ibid.)

                                             12
Although we are required to broadly construe the anti-SLAPP statute (§ 425.16, subd.

(a)), we must examine the pleadings and related evidentiary record in a fair and

commonsense manner to determine whether the claims are based on protected activities.

       Fairly read, the seventh and ninth causes of action do not purport to base their

claims on cross-defendants' petitioning activities. In these causes of action, Growers did

not mention or refer to the petitioning activities. Each cause of action incorporates the

factual allegation that in late July 2011, cross-defendants engaged in improper (and

unprotected) actions by threatening Growers and preventing access to the property, and

claiming an ownership interest in the plants. Itzikman's declaration supports that these

unprotected activities constituted the factual foundation for the seventh and ninth causes

of action. Although cross-defendants focus on the petitioning activities in their

declarations, it is the party filing the complaint or cross-complaint, and not the opposing

party, who decides the acts for which it is seeking to hold the party liable.

       Cross-defendants contend the seventh and ninth causes of action must have been

based on their constitutionally-protected petitioning activities because Growers included

the phrase "beginning in August 2011" when identifying the alleged wrongful conduct.

They say that Growers did not produce any evidence that they engaged in unprotected

activities after the July 29 incident.

       This argument is unsupported by the record. Growers submitted evidence

showing that in late July 2011, Smith ejected Growers' workers from the property, and

Nieto and Judaken refused to allow Growers access to the disputed plants and claimed

their own ownership interests in the plants through their newly formed business

                                             13
relationships with Smith. It is undisputed that these activities were not protected by the

anti-SLAPP statute. Further, Itzikman stated in his declaration that these activities

continued after July 2011, presumably through the time the cross-complaint was filed

(December 2011). The fact that cross-defendants may not have had unprotected

communications with Growers after July 2011, does not mean they were not continuing

to engage in the alleged unprotected wrongful activities into August and beyond,

including by failing to maintain Growers' plants and continuing to prevent access to the

property.

       Additionally, we are not convinced that Growers' use of the phrase beginning in

August 2011 in the seventh and ninth causes of action reflected an intent to hold cross-

defendants liable only for activities that occurred beginning in August 2011 (and not

before that time). When read in isolation, the phrase "beginning in August 2011" does

suggest that cross-defendants' alleged wrongful conduct commenced for the first time in

August. However, this conclusion is not reasonable when viewing the phrase in context

of the entire complaint, together with the supporting declarations. Read as a whole, the

complaint reflects that in each cause of action Growers is seeking to hold cross-

defendants liable for their conduct and actions occurring before and after August 2011.

This conclusion is supported by the fact that the factually and legally similar claims

alleged in the tenth and eleventh causes of action (negligent and intentional interference

with prospective economic advantage) do not specifically include the "beginning in

August 2011" phrase. It is not reasonable to conclude that Growers intended to base its

conversion and contract-interference claims (alleged in the seventh and ninth cause of

                                            14
action) only on conduct beginning in August 2011, and to base its interference-with-

prospective-economic-advantage claims (alleged in the tenth and eleventh causes of

action) on conduct occurring before or after August 2011.

       In this regard, we find unavailing cross-defendants' reliance on the ejusdem

generis concept. " 'Under the principle of ejusdem generis (literally, "of the same kind")

[citations], where specific words follow general words in a contract [or a statute], "the

general words are construed to embrace only things similar in nature to those enumerated

by the specific words.". . .' " (Pfeifer v. Countrywide Home Loans, Inc. (2012) 211

Cal.App.4th 1250, 1275.) This statutory and contract interpretation principle has no

applicability here. The interpretation of a pleading for purposes of the threshold section

425.16 analysis does not resemble the interpretation of a contract or a statute. Unlike

statutory or contract interpretation, in determining whether the defendant met its burden

to show the claims arose from protected activity, we are not required to focus on the

individual words, and instead must consider all of the allegations, including those

incorporated in a particular cause of action, together with the evidence submitted by the

parties. Under anti-SLAPP analysis, a court does not ignore general allegations merely

based on a single allegation of more specific conduct. In any event, as noted, the

allegation of conduct occurring in August 2011 incorporated essentially the same

unprotected activities that were alleged to be wrongful in late July 2011. Thus, our

interpretation is consistent with the ejusdem generis principle.

       Cross-defendants' reliance on principles concerning "mixed" causes of action in

the SLAPP context is also unhelpful here. Generally, if "a cause of action is based on

                                             15
both protected activity and unprotected activity, it is subject to section 425.16 ' "unless

the protected conduct is 'merely incidental' to the unprotected conduct." ' " (Haight

Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539,

1551.) However, in this case we have concluded the cause of action arises from

unprotected activity and not on protected activity. Thus, the standards applicable to

mixed causes of action are inapplicable. Moreover, to the extent the complaint can be

viewed as including allegations of protected conduct (e.g., the communications between

counsel, cross-defendants' communications with the sheriff, and cross-defendants' filing

of the complaint) this conduct was incidental to Growers' claims. Reading the complaint

as a whole, Growers was seeking relief arising from a commercial business dispute based

on allegations that cross-defendants refused to allow access to Growers' plants and then

failed to maintain the plants resulting in their destruction. In the context of this dispute,

any references to unprotected conduct were incidental as a matter of law.

                                     III. Attorney Fees

       Growers requests this court award attorney fees on appeal under section 425.16,

subdivision (c), which provides: "If the court finds that [an anti-SLAPP] 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 [or cross-complainant] prevailing on the

motion . . . ." On the record before us, we decline to find that cross-defendants' appeal

was frivolous or solely intended to cause delay. We therefore deny Growers' attorney

fees request.



                                              16
                                  DISPOSITION

     Order affirmed. Appellants to bear respondent's costs on appeal.




                                                                        HALLER, J.

WE CONCUR:



HUFFMAN, Acting P. J.



AARON, J.




                                         17
