Filed 10/17/19
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                            DIVISION EIGHT


STARVIEW PROPERTY, LLC,                       B292245

                 Plaintiff and Respondent,    (Los Angeles County
                                              Super. Ct. No. SC127365)
       v.

STEPHEN Y. LEE et al.,

            Defendants and Appellants.



     APPEAL from an order of the Superior Court of Los
Angeles County. Gerald Rosenberg, Judge. Reversed and
remanded with directions.
     Davis Wright Tremaine, Mary H. Haas and Rochelle L.
Wilcox for Defendants and Appellants.
     McGarrigle, Kenney & Zampiello, Patrick C. McGarrigle
and Marianne Fratianne for Plaintiff and Respondent.

                      _____________________________
        In this acrimonious dispute between neighbors over a
driveway easement, defendants Stephen and Tracy Lee appeal
the trial court’s denial of a motion pursuant to Code of Civil
Procedure section 425.16, the anti-SLAPP statute,1 directed at
three claims plaintiff Starview Property, LLC asserted for the
first time in its first amended complaint. Although the Lees’
motion was timely filed within 60 days after the filing of the
amended complaint, the trial court denied the motion as untimely
because the new claims were based on facts alleged in the
original complaint and the motion was filed more than 60 days
after service of the original complaint. (Code Civ. Proc., § 425.16,
subd. (f) [60-day deadline to file motion after service of
“complaint”].)2
      The court erred. An anti-SLAPP motion may be brought
within 60 days of service of an amended complaint “ ‘if the
amended complaint pleads new causes of action that could not
have been the target of a prior anti-SLAPP motion, or adds new
allegations that make previously pleaded causes of action subject
to an anti-SLAPP motion.’ ” (Newport Harbor Ventures, LLC v.
Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 641
(Newport Harbor II).) Starview’s three newly pled causes of
action in its amended complaint plainly could not have been the
target of a prior motion, even if they arose from protected activity
alleged in the original complaint. We reverse the court’s order.


1     SLAPP stands for “strategic lawsuits against public
participation. (Rand Resources, LLC v. City of Carson (2019)
6 Cal.5th 610, 614 (Rand).)
2    All undesignated statutory citations are to the Code of Civil
Procedure.




                                 2
We express no views on the merits of the motion and remand for
the court to consider the merits in the first instance.
                         BACKGROUND
      The parties own neighboring parcels of land in
Brentwood—Starview owns 816 Glenmere Way (the 816
property) and the Lees own 815 Glenmere Way (the 815
property). In 1958, the Lees’ predecessor granted an easement to
Starview’s predecessor over a driveway entirely situated on the
Lees’ property for ingress, egress, and driveway purposes. In
1959, the parties’ predecessors modified the easement with an
agreement containing this clause: “Should any further
documents be necessary to be placed of record for the purpose of
perfecting title to the matters set forth in this agreement, the
parties hereto mutually agree to execute such additional
documents.”
      In 2016, Starview purchased the 816 property, and it
intended to remodel the existing home. In 2017, it submitted
architectural plans to the City of Los Angeles (the City). As a
condition of permit approval, the City required Starview to sign a
Covenant and Agreement for Community Driveway and to secure
the Lees’ signature on the document as well. The document was
required because anyone accessing one of the five required
parking spaces on Starview’s property would have to use the
driveway on the Lees’ property.
      The Lees declined to sign the covenant. Starview alleged
the Lees claimed they were entitled to new consideration and to
condition their performance on extra-contractual demands for
indemnity, construction, releases, and payment of $5,000.
Starview eventually installed a vehicle lift system that was




                                3
approved by the City, which avoided the parking problem and
avoided requiring the Lees to sign the Covenant.
      Starview filed the original complaint on April 11, 2017,
alleging three contract-based claims: (1) breach of contract; (2)
specific performance; and (3) injunctive relief. All three claims
were based on the Lees’ failure to sign the covenant in breach of
the easement agreement. The Lees did not file an anti-SLAPP
motion to strike any of these causes of action.
      The parties conducted some discovery and filed motions for
summary judgment/adjudication. Then, over a year after filing
the original complaint, Starview filed a first amended complaint
(FAC) on May 17, 2018. The FAC added factual detail but
alleged the same basic acts of the Lees refusing to sign the
covenant in breach of the easement agreement and making extra-
contractual demands for additional concessions and
consideration. The FAC realleged causes of action for breach of
contract and injunctive relief, but added claims for breach of the
implied covenant of good faith, negligent and intentional
interference with easement, and private nuisance. The newly
added claims were based on both the Lees’ failure to sign the
covenant and on their extra-contractual demands.
      On July 11, 2018—55 days after the FAC was deemed
filed—the Lees filed their anti-SLAPP motion. It sought to strike
the newly added causes of action for breach of the implied
covenant of good faith and for negligent and intentional
interference with easement. Alternatively, it sought to strike
certain factual allegations of “pre-litigation communications”
related to the Lees’ extra-contractual demands, including factual
allegations that appeared in the original complaint. In the
motion, the Lees argued their failure to sign the covenant and




                                4
their pre-litigation communications were protected activity, and
Starview could not prevail on the three new claims.
       In opposition, Starview argued the motion was untimely
because the claimed protected activity was alleged in the original
complaint and the motion was filed more than 60 days after the
original complaint was served. Starview also opposed the motion
on the merits.
       The trial court denied the motion as untimely because the
original complaint alleged “the same protected conduct subject to
SLAPP raised by Defendants in this motion,” which was the Lees’
refusal to sign the covenant and the Lees’ demand for additional
consideration to sign the covenant. In the court’s view, the FAC
“did not reopen the time to file a SLAPP; Defendants were
required to bring any SLAPP motion within 60 days of being
served with the original Complaint, or by July 2, 2017.” The
court did not reach the merits of the motion.
       The Lees appealed the court’s order.
                            DISCUSSION
       A. The Lees’ Anti-SLAPP Motion Was Timely
       The anti-SLAPP statute creates a procedure to “resolve
quickly and relatively inexpensively meritless lawsuits that
threaten free speech on matters of public interest.” (Newport
Harbor II, supra, 4 Cal.5th at p. 639.) To that end, a court may
strike a cause of action if it “(1) arises from an act in furtherance
of the right of petition or free speech ‘in connection with a public
issue,’ and (2) the plaintiff has not established ‘a probability’ of
prevailing on the claim.” (Rand, supra, 6 Cal.5th at pp. 619–620;
see § 425.16, subd. (b)(1).) An anti-SLAPP motion “may be filed
within 60 days of the service of the complaint or, in the court’s
discretion, at any later time upon terms it deems proper.”




                                  5
(§ 425.16, subd. (f).)3 The trial court’s determination that the
Lees’ motion was untimely is a question of law we review de novo.
(Newport Harbor Ventures, LLC v. Morris Cerullo World
Evangelism (2016) 6 Cal.App.5th 1207, 1219, review granted
March 22, 2017, S239777, affirmed 4 Cal.5th 637 (Newport
Harbor I).)4
      In Newport Harbor II, the California Supreme Court
interpreted section 425.16, subdivision (f), to “permit an anti-
SLAPP motion against an amended complaint if it could not have
been brought earlier, but to prohibit belated motions that could
have been brought earlier (subject to the trial court’s discretion to
permit a late motion).” (Newport Harbor II, supra, 4 Cal.5th at p.


3      The 60-day clock to file an anti-SLAPP motion runs from
the service of a complaint, but the record does not reflect when
either the original or the FAC complaints were served. The
parties base their arguments on the filing dates. Since any time
difference between filing and service does not impact their
positions or our analysis, we will do the same.
4     Starview argues we must review for abuse of discretion, but
the cases it cites all involved the trial court’s exercise of statutory
discretion to permit the filing of an untimely anti-SLAPP motion.
(See Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th
1174, 1187 (Hewlett-Packard); Kunysz v. Sandler (2007) 146
Cal.App.4th 1540, 1542–1543; Morin v. Rosenthal (2004) 122
Cal.App.4th 673, 681.) Here, we are concerned with whether the
Lees’ motion was timely filed in the first instance, a legal
question about the proper interpretation and application of
section 425.16, subdivision (f). Even if we reviewed for abuse of
discretion, a court abuses its discretion if “ ‘the grounds given by
the court . . . are inconsistent with the substantive law of section
425.16.’ ” (Hewlett-Packard, supra, at p. 1187.) As we explain,
that occurred here.




                                  6
645.) An anti-SLAPP motion directed at an amended complaint
“could not have been brought earlier” if “ ‘the amended complaint
pleads new causes of action that could not have been the target of
a prior anti-SLAPP motion, or adds new allegations that make
previously pleaded causes of action subject to an anti-SLAPP
motion.’ ” (Id. at p. 641, quoting Newport Harbor I, supra, 6
Cal.App.5th at p. 1219.)
       Starview defends the trial court’s ruling by arguing the
Lees’ motion could have been brought earlier because the newly
alleged claims rest on previously alleged facts. Starview’s
position, as well as the trial court’s ruling, misunderstand anti-
SLAPP law and Newport Harbor II.
       By its terms, the anti-SLAPP statute is directed at striking
causes of action, not merely factual allegations. (See Baral v.
Schnitt (2016) 1 Cal.5th 376, 394 (Baral) [“Allegations of
protected activity that merely provide context, without
supporting a claim for recovery, cannot be stricken under the
anti-SLAPP statute.”]; see also Rand, supra, 6 Cal.5th at p. 621
[“But to prevail on an anti-SLAPP motion, a defendant must do
more than identify some speech touching on a matter of public
interest. As we have explained, ‘ “the defendant’s act underlying
the plaintiff’s cause of action must itself have been an act in
furtherance of the right of petition or free speech.” ’ ”].) That is
why causes of action under the anti-SLAPP statute have been
defined as “claims for relief that are based on allegations of
protected activity.” (Baral, supra, at p. 396, italics added.) Here,
Starview may have asserted the alleged protected activity in the
original complaint, but it did not assert the challenged “claims for
relief” until the FAC. The Lees could not have brought a motion




                                 7
to strike those claims from the original complaint because they
did not exist to be stricken.
       Stated in the context of anti-SLAPP law, “[a] claim arises
from protected activity when that activity underlies or forms the
basis for the claim.” (Park v. Board of Trustees of California
State University (2017) 2 Cal.5th 1057, 1062 (Park).) Hence,
claims subject to the anti-SLAPP statute contain two
components: allegations of protected activity, and a legal claim
for relief arising from that protected activity. (Rand, supra, 6
Cal.5th at p. 620 [first step of anti-SLAPP analysis requires
defendant to show “the ‘conduct by which plaintiff claims to have
been injured falls within one of the four categories’ ” of protected
activity defined in the statute, and “that the plaintiff’s claims in
fact arise from that conduct”]; see Park, supra, at p. 1062.)
       Starview’s argument ignores the “arising from” component.
When a plaintiff has alleged protected activity, but no
corresponding legal theory for relief, there is no claim arising
from anything, let alone one arising from protected conduct.
(Baral, supra, 1 Cal.5th at p. 394.) It is not even possible to
assess the application of the anti-SLAPP statute in that scenario.
To determine whether a claim arises from protected activity, a
court—and a defendant when considering whether to file an anti-
SLAPP motion in the first instance—“should consider the
elements of the challenged claim and what actions by the
defendant supply those elements and consequently form the basis
for liability.” (Park, supra, 2 Cal.5th at p. 1063.) This analysis is
impossible when the “claim” half of that comparison is missing.
As a matter of law and common sense, an anti-SLAPP motion
cannot be brought to strike a claim until the plaintiff asserts it.
That may occur for the first time in an amended complaint, and




                                 8
an anti-SLAPP motion directed at newly asserted claims, even if
based on previously alleged facts, would be timely if filed within
60 days of service of the amended complaint.
       Newport Harbor II arose in the same basic factual context
and confirms this conclusion. In that case, the plaintiff had filed
an original complaint and several amended complaints, all of
which alleged the defendants fraudulently settled an unlawful
detainer action. (Newport Harbor II, supra, 4 Cal.5th at p. 640.)
The first and subsequent complaints alleged multiple causes of
action, including breach of contract and breach of the implied
covenant of good faith. The third amended complaint continued
to allege the defendants fraudulently settled the unlawful
detainer action and realleged the two previously pled claims, but
it added two causes of action for quantum meruit and promissory
estoppel. (Id. at p. 640.) The trial court denied the defendant’s
anti-SLAPP motion directed at the third amended complaint,
noting every complaint “ ‘referenced the Settlement Agreement at
the heart of Defendants’ argument.’ ” (Ibid.)
       The Court of Appeal held the motion was untimely as to the
claims alleged in prior complaints but timely as to the two new
causes of action because they “could not have been challenged by
an anti-SLAPP motion to a prior complaint.” (Newport Harbor I,
supra, 6 Cal.App.5th at p. 1212.) The Court of Appeal explained
an anti-SLAPP motion challenging the prior complaints would
not have prevented the plaintiffs “from bringing a lawsuit for
quantum meruit and promissory estoppel. That is because an
earlier anti-SLAPP motion would not necessarily have resolved
whether [the plaintiffs] could demonstrate a probability of
prevailing on their claims for quantum meruit and promissory
estoppel.” (Newport Harbor I, supra, at p. 1220.)




                                9
       The California Supreme Court affirmed, accepting the line
drawn by the Court of Appeal between an untimely motion
challenging existing claims and a timely motion challenging new
claims or allegations added in an amended complaint. (Newport
Harbor II, 4 Cal.5th at p. 646.) The high court did not mention,
and was not concerned with, whether the new claims were based
on new or existing factual allegations regarding the fraudulent
unlawful detainer settlement. The question was simply whether
the amended complaint “ ‘pleads new causes of action that could
not have been the target of a prior anti-SLAPP motion, or adds
new allegations that make previously pleaded causes of action
subject to an anti-SLAPP motion.’ ” (Id. at p. 641.)
       Starview attempts to distinguish Newport Harbor II by
arguing the new claims in that case were actually based on newly
alleged facts. Starview’s reading of Newport Harbor II is
incorrect. In the Court of Appeal opinion in Newport Harbor I,
the court analyzed the merits of the plaintiffs’ new claims for
quantum meruit and promissory estoppel in the second step of
the anti-SLAPP analysis. (Newport Harbor I, supra, 6
Cal.App.5th at p. 1220.) The court found the new claims were not
barred by the applicable statutes of limitations because they
related back to prior complaints. (Id. at pp. 1222, 1224.) The
amended complaint could only relate back to earlier complaints
“if the amended complaint is based on the same general set of
facts, even if the plaintiff alleges a different legal theory or new
cause of action.” (Id. at pp. 1221–1222.) Thus, the prior
complaints necessarily alleged the same general set of facts as the
third amended complaint, and yet the anti-SLAPP motion was
timely as to the newly added claims.




                                10
       Starview also argues the Lees could have brought their
anti-SLAPP motion earlier because their original breach of
contract-related claims arose from the same protected activity
that now underlies the Lees’ new claims. In its view, we should
focus on the conduct forming the basis for the claims, and not the
labels of the alleged causes of action. It cites Crossroads
Investors, L.P. v. Federal National Mortgage Assn. (2017) 13
Cal.App.5th 757 (Crossroads), which stated, “To resolve an anti-
SLAPP motion, we do not rely on the form of the complaint or the
name of a cause of action. Rather, we determine the conduct
from which [the plaintiff’s] claims arose and whether that
conduct was constitutionally protected.” (Id. at pp. 780–781.)
The court was implicitly referring to Baral, in which our high
court addressed a so-called “mixed cause of action” involving both
protected and unprotected activity, holding the term “cause of
action” subject to the anti-SLAPP statute does not depend on the
form of the plaintiff’s pleadings. (Baral, supra, 1 Cal.5th at p.
395.)
       The rule announced in Baral and Crossroads does not
apply here. For one thing, in Newport Harbor II, our high court
rejected the defendants’ argument that the court’s holding on
timeliness required it to overrule Baral, which “did not consider
the timeliness of any motion to strike or the proper interpretation
of section 425.16, subdivision (f).” (Newport Harbor II, supra, 4
Cal.5th at p. 646.) Further, the principle from Baral and
Crossroads only comes into play after the plaintiff has asserted a
claim for relief that could have arisen from protected activity. As
we have made clear, the defendant cannot bring an anti-SLAPP
motion strike a claim that has not yet been alleged.




                                11
        There are sound policy reasons for allowing a defendant to
challenge newly asserted claims. As Newport Harbor II noted,
permitting a defendant to challenge newly asserted causes of
action with an anti-SLAPP motion prevents a plaintiff from
“ ‘circumvent[ing] the purpose of the anti-SLAPP statute by
holding back . . . causes of action from earlier complaints.’ ”
(Newport Harbor II, supra, 4 Cal.5th at p. 641.) Accepting
Starview’s position here would lead to that very result. It would
encourage a plaintiff to plead a wide array factual allegations
amounting to protected activity, but plead very few legal claims.
Once the time to file an anti-SLAPP motion expires, the plaintiff
could then amend the complaint to add as many claims as it sees
fit arising from the previously pled protected conduct, now
immune from an anti-SLAPP motion. Allowing a defendant to
attack newly pled legal claims, whether or not based on existing
allegations of protected activity, prevents this gamesmanship.
        We of course recognize the anti-SLAPP statute was
designed to “resolve quickly and relatively inexpensively
meritless lawsuits that threaten free speech on matters of public
interest.” (Newport Harbor II, supra, 4 Cal.5th at p. 639.)
Newport Harbor II understood this problem and barred late
motions that could have been brought earlier, given discovery is
stayed and the ruling on an anti-SLAPP motion is appealable,
which stays all proceedings. (Id. at p. 645; see § 425.16, subds.
(g), (i); Hewlett-Packard, supra, 239 Cal.App.4th at p. 1184
[noting anti-SLAPP motion produces “free time-out” from
litigation].) We agree that once litigation and discovery have
commenced, “[i]t is far too late for the anti-SLAPP statute to
fulfill its purpose of resolving the case promptly and
inexpensively.” (Newport Harbor II, supra, at p. 645.)




                                12
       Yet, Newport Harbor II struck a balance by allowing late
motions directed only at new causes of action to “maximize[] the
possibility the anti-SLAPP statute will fulfill its purpose while
reducing the potential for abuse.” (Newport Harbor II, supra,
4 Cal.5th at p. 645.) The parties here may yet streamline the
case if the trial court strikes Starview’s new claims on remand
and narrows the dispute between the parties. On the other hand,
if Starview was concerned with the expediency of the case, it was
the master of its own pleadings. (Id. at p. 646.) It could have
chosen to plead all claims initially or avoid adding new claims
later, “in which case no anti-SLAPP motion at all would be
permitted.” (Ibid.) Starview’s basic position on appeal is that its
new claims are the same as its old claims, so it would arguably
have lost little by not adding them to the FAC. Allowing the
Lees’ motion to move forward as to Starview’s new claims is fully
consistent with the anti-SLAPP statute.
       B. We Decline to Consider the Merits of the Anti-
          SLAPP Motion in the First Instance
       The Lees urge us to consider the merits of their motion,
including their evidentiary objections, for the first time on
appeal. We decline the invitation. We think it “advisable to
remand the matter to the trial court so that it may rule on the
outstanding evidentiary and substantive matters in the first
instance.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 286.)




                                13
                          DISPOSITION
       The order is reversed and the matter remanded for the
trial court to consider the merits of the anti-SLAPP motion.
Appellants are entitled to costs on appeal.
       Starview has moved to dismiss the Lees’ appeal as frivolous
and requested sanctions. Having found the appeal meritorious,
we deny the motion.
       CERTIFIED FOR PUBLICATION




                                    BIGELOW, P. J.

We concur:



                  STRATTON, J.




                  WILEY, J.




                               14
