Filed 4/11/16 Holy Apostolic Catholic Assyrian Church of the East v. Storms CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT



HOLY APOSTOLIC CATHOLIC ASSYRIAN
CHURCH OF THE EAST etc.,                                                                   F071467

         Plaintiff and Respondent,                                              (Super. Ct. No. 2011147)

                   v.
                                                                                         OPINION
KEVIN STORMS,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County.
Timothy W. Salter, Judge.
         Dan Farrar for Defendant and Appellant.
         Dickerson Law and Brett L. Dickerson for Plaintiff and Respondent.


*        Before Kane, Acting P.J., Franson, J. and Peña, J.
                                            -ooOoo-
                                          INTRODUCTION
       Respondent Holy Apostolic Catholic Assyrian Church of the East, Diocese of
Western California, Religious Corporation dba the Larsa Banquet Hall (hereafter Larsa)
operates an entertainment hall (Hall). Appellant Kevin Storms (hereafter Kevin) is a
neighboring resident. Kevin made several complaints to local law enforcement about
music noise coming from the Hall that disturbed the peace and quiet of his home, which
was located about 600 feet away. Hall filed a complaint alleging that Kevin’s reports to
law enforcement were knowingly false when made. In its first amended complaint, Hall
pled causes of action for intentional interference with prospective economic advantage,
civil conspiracy, defamation and abuse of process. In addition, it sought a temporary
restraining order, preliminary and permanent injunctive relief, which the trial court
denied. Kevin filed a special anti-SLAPP motion to strike pursuant to Code of Civil
Procedure section 425.16.1 This motion was denied on the ground that not all of Kevin’s
actions were protected speech. We reverse and remand for the court to determine
whether Larsa has established that there is a probability that it will prevail on the claim.
(§ 425.16, subd. (b)(1).)
                                         PLEADINGS
       The first amended complaint alleges that on four occasions Kevin knowingly
caused to be filed noise complaints that had no basis in fact and which were carried out
with the intent of interfering with Larsa’s protected rights and interest in doing business.
These complaints followed an earlier planning commission meeting in which Larsa was
informed that if there were four more verified complaints within six months, a hearing
would be scheduled to determine if its use permit for the operation of the hall should be


1       All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.


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revoked. Larsa alleges that this ultimatum from the planning commission motivated
Kevin to lodge four false complaints with the sheriff’s department, as it was his intent to
cause Larsa’s use permit to be revoked. Larsa’s pleading alleged causes of action for
civil conspiracy, defamation, intentional interference with prospective economic
advantage and abuse of process. The pleading also sought injunctive relief.
       Kevin filed a special motion to strike under section 425.16. The motion included
supporting declarations from Kevin and his wife, Tracee Storms. Larsa filed opposition
with supporting declarations and Kevin filed a reply. A hearing was held and the court
granted the motion to strike as to Tracee, but denied the motion as to Kevin for the reason
that “not all of his actions were protected speech.” The court also denied Larsa’s motion
for a temporary restraining order, preliminary and permanent injunction on the basis that
“it is overbroad, seeks to enjoin protected speech and the lack of evidence of irreparable
harm.” Kevin appeals the denial of his motion to strike.
                                       EVIDENCE
       The controlling county ordinance provides:

               “Sound-Amplifying Equipment and Live Music. No person shall
       install, use or operate sound-amplifying equipment, or perform, or allow to
       be performed, live music unless the sound emanating from the sound-
       amplifying equipment or live music shall not be audible to the human ear at
       a distance greater than 200 feet. To the extent that these requirements
       conflict with any conditions of approval attached to an underlying land use
       permit, these requirements shall control.” (Stanislaus Ord.
       No. 10.46.060(D).)
       Both sides submitted declarations in support of their positions. Kevin and his wife
submitted declarations indicating that events at the Hall frequently caused loud music to
disturb them in their home located 600 feet from the Hall. They tried to resolve the issue
directly with Larsa, but were eventually told by a Larsa representative to stop contacting
them. When the noise problems continued, Kevin contacted the planning commission,
the sheriff’s department and Stanislaus County Code Enforcement. Kevin declared that


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every complaint he made was based upon him hearing and feeling (bass) music coming
from the Hall. He denied ever making a false complaint. Tracee’s declaration essentially
corroborated Kevin’s declaration.
        Larsa submitted declarations disputing Kevin’s and Tracee’s declarations.
Sheriff’s department incident reports were produced, in addition to personal accounts of
people who were present when complaints were lodged against Larsa, which indicated
either that no music was being played in the Hall at the time of the complaint or that the
music noise coming from within the Hall could not be heard beyond 200 feet from the
Hall.
        In response to Larsa’s assertion that sheriff’s deputies, when called, could not hear
the music from Kevin’s house, Kevin responded by declaring there were occasions when
the music and bass were bothering his family and he called the sheriff’s department, but
by the time the deputy showed up the music was turned down, only to be turned up again
once the deputy left.
                                       DISCUSSION
I.      Standard of Review
        We review de novo the trial court’s ruling to grant or deny an anti-SLAPP motion.
(Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).) “Resolving the merits of a
section 425.16 motion involves a two-part analysis, concentrating initially on whether the
challenged cause of action arises from protected activity within the meaning of the statute
and, if it does, proceeding secondly to whether the plaintiff can establish a probability of
prevailing on the merits.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151
Cal.App.4th 688, 699.) In our de novo review, “‘[w]e consider “the pleadings, and
supporting and opposing affidavits … upon which the liability or defense is based.”
(§ 425.16, subd. (b)(2).) However, we neither “weigh credibility [nor] compare the
weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff



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[citation] and evaluate the defendant’s evidence only to determine if it has defeated that
submitted by the plaintiff as a matter of law.” [Citation.]’” (Flatley, supra, at p. 326.)
II.    Overview of the Anti-SLAPP Statute
       Section 425.16, subdivision (b)(1), 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.” An act in furtherance of a person’s right of petition or free
speech is broadly defined by section 425.16, subdivision (e), to include the following:
“(1) any written or oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by law, (2) 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, … or (4) 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.”
       “[T]he Legislature enacted section 425.16, the anti-SLAPP statute, to provide for
the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of grievances.”
(Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315.) “The
Legislature authorized the filing of a special motion to strike such claims (§ 425.16,
subds. (b)(1), (f)), and expressly provided that section 425.16 should ‘be construed
broadly.’” (Ibid.; see § 425.16, subd. (a).) As noted, the resolution of an anti-SLAPP
motion follows a two-step process: “First, the court decides whether the defendant has
made a threshold showing that the challenged cause of action is one arising from
protected activity.… [Second], [i]f the court finds such a showing has been made, it then

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determines whether the plaintiff has demonstrated a probability of prevailing on the
claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “Only
a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises
from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject
to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89
(Navellier).) The defendant has the burden on the first issue; the plaintiff has the burden
on the second issue. (Kajima Engineering & Construction, Inc. v. City of Los Angeles
(2002) 95 Cal.App.4th 921, 928.)
       To satisfy the first step, the moving defendant must show the cause of action arises
from or is based on acts that come within one of the categories of section 425.16,
subdivision (e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) If the defendant
does not meet this threshold burden at the first step, the court denies the motion without
addressing the second step. If the defendant makes the required showing, the burden
shifts to the plaintiff to satisfy the second step of the anti-SLAPP analysis. (Tuszynska v.
Cunningham (2011) 199 Cal.App.4th 257, 266–267.) To satisfy the second step, a
plaintiff must state and substantiate a legally sufficient claim. (Rusheen v. Cohen (2006)
37 Cal.4th 1048, 1056.) “‘Put another way, the plaintiff “must demonstrate that the
complaint 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.” [Citations.]’” (Ibid.) “In deciding the question of potential merit, the trial
court considers the pleadings and evidentiary submissions of both the plaintiff and the
defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or
comparative probative strength of competing evidence, it should grant the motion if, as a
matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s
attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert &
Chidester (2002) 28 Cal.4th 811, 821 (Wilson).)



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       Even if the gravamen of the complaint relates to speech, the defendant is
precluded from using the anti-SLAPP statute to strike plaintiff’s action if the defendant
concedes or the evidence conclusively establishes that the assertedly protected speech or
petition activity was illegal as a matter of law. (Flatley, supra, 39 Cal.4th at p. 320;
Navellier, supra, 29 Cal.4th at pp. 94–95.) Adopting the appellate court’s analysis in Paul
for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, Flatley makes clear that it is only in
the “narrow circumstance in which a defendant’s assertedly protected activity could be
found to be illegal as a matter of law” that such activity does not come within the
purview of section 425.16. (Flatley, supra, at pp. 315–316, italics added.) It is only in
rare cases in which the evidence is uncontroverted that criminal activity occurred and
that a defendant’s acts are not entitled to protection under section 425.16. (Zucchet v.
Galardi (2014) 229 Cal.App.4th 1466, 1478.) When the alleged illegality of a
defendant’s activity is contested, then the claimed illegitimacy of a defendant’s acts is an
issue that the plaintiff must raise and support in discharging its burden under step two,
that is, in demonstrating a probability of prevailing. (Ibid.)
III.   Kevin Met His Burden Under the First Step of Section 425.16
       Larsa acknowledges that the act of complaining to law enforcement is protected
speech, but contends, once it is conclusively determined that the complaints were falsely
made, that speech is no longer protected. (Lefebvre v. Lefebvre (2011) 199 Cal.App.4th
696, 701, 706 [where the defendant did not contest that she submitted an illegal, false
criminal report in violation of Pen. Code, § 148.5, no constitutionally protected right of
petition or free speech implicated and motion to strike properly denied].) We agree with
the principle that, if it is established as a matter of law that Kevin’s complaints to police
were falsely made, his speech is not protected under section 425.16. We also agree with
Larsa that a confession is not a prerequisite to establishing illegality. Nevertheless, the
defendant’s illegal conduct must be established as a matter of law. (Flatley, supra, 39



                                              7.
Cal.4th at p. 320.) The flaw in Larsa’s argument is that the evidence presented below
does not conclusively establish that these complaints were falsely made.
       Larsa cites Gerbosi v. Gaims, Weil, West & Epstein, LLP (20011) 193 Cal.App.4th
435, 446 (Gerbosi) and Flatley, supra, 39 Cal.4th at page 317, in arguing that Kevin’s
evidence is nothing more than an assertion he did nothing wrong, which is insufficient to
overcome Larsa’s evidence that his police calls were falsely made. Contrary to Larsa’s
characterization, Kevin’s evidence is more than a denial of wrongdoing. His declaration
does more than merely assert “that his underlying activity was constitutionally
protected.” (Flatley, supra, at p. 317; Gerbosi, supra, at p. 446.) The declarations of
Kevin and Tracee describe specific instances in which they called the police when they
could hear and feel the music noise emanating from the Hall. Larsa’s rebuttal evidence
raises triable issues of fact, but does not conclusively establish that Kevin’s reports of
loud music were falsely made.
       Larsa urges the court to find Kevin and Tracee’s declarations incredible in light of
the opposition evidence. Where a factual dispute exists about the legitimacy of a
defendant’s conduct, it cannot be resolved under the first step of the anti-SLAPP motion
statute (protected activity), but must be raised by the plaintiff in meeting its burden to
show a probability of prevailing on the merits under the second step. (Flately, supra, 39
Cal.4th at p. 315, italics added [it is only in the “narrow circumstance in which a
defendant’s assertedly protected activity could be found to be illegal as a matter of law”
that such activity does not come within the purview of section 425.16.].) In considering
the conflicting evidence presented in an anti-SLAPP motion the court is not permitted to
weigh credibility or compare the weight of the evidence. (Flatley, supra, at p. 326;
Wilson, supra, 28 Cal.4th at p. 821.)
       In the instant case, the trial court never reached step two, that is, it never
considered or ruled upon the question whether Larsa demonstrated a probability of
prevailing on the merits. Instead, it denied the motion under step one “on the ground that

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not all of [Kevin’s] actions were protected speech.” For the reasons already stated, the
911 calls to the sheriff’s department are protected speech. The only reason they would
not be protected is if it could be established as a matter of law that such speech was
illegal, and that showing has not been made.
       The trial court did not elaborate on the reason for denying the motion to strike
other than to say that not all of Kevin’s actions were protected speech. Apparently, the
trial court was persuaded by Larsa’s argument that the 911 calls were not protected
speech because they were falsely made and therefore criminal under Penal Code
section 148.5. We find that conclusion to be error for the reasons already explained,
namely, that the question of whether the police calls were falsely made is a disputed issue
of fact and as such has not been, at this stage of the proceedings, established as a matter
of law.
IV.    CONCLUSION
       Kevin met his burden of showing that the gravamen of the complaint against him
arose from conduct in furtherance of the exercise of his constitutional rights to speech
and petition. The evidence does not establish as a matter of law that his acts were illegal.
Thus, the burden shifts to Larsa to establish a probability of prevailing. Since the trial
court never considered that second step, we reverse and remand so that the court may
consider and rule upon whether Larsa can meet its burden of showing a probability of
prevailing.
                                      DISPOSITION
       The order denying the motion to strike is reversed. The matter is remanded to the
trial court to decide whether Larsa can meet its burden of showing a probability of
prevailing on the merits. If the court rules that Larsa has met its burden, the motion to
strike should be denied. If the court rules Larsa’s burden has not been met, the motion to
strike should be granted. Costs on appeal are awarded to Kevin.



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