Filed 12/19/14 Coyote Springs Guest Ranch v. Castaldi 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

COYOTE SPRINGS GUEST RANCH et al.,
                                                                                   F065144 & F065570
         Plaintiffs and Respondents,
                                                                           (Mariposa Super. Ct. No. 10063)
                   v.

ALFONSE CASTALDI et al.,
                                                                                         OPINION
         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Mariposa County. Wayne R.
Parrish and F. Dana Walton, Judges.
         Allan L. Dollision; Canelo, Wilson, Wallace & Padron; and Kenneth R. Mackie
for Defendant and Appellant, Alfonse Castaldi
         Canelo, Wilson, Wallace & Padron; Canelo, Wallace, Padron & Mackie; and
Kenneth R. Mackie for Defendant and Appellant, Theresa Castaldi.
         Silveira, Mattos & Lewis and Weldon J. Mattos for Plaintiffs and Respondents.
                                                        -ooOoo-




         
         Judge Parrish presided over the special motion to strike (Code Civ. Proc.,
§ 425.16); Judge Walton presided over the motion for attorney fees/sanctions (Code Civ.
Proc., § 425.16, subd. (c)(1).)
       This case requires us to wade through convoluted facts involving 12 causes of
action, five parties, two lawsuits and a guest ranch. At the center of the litigation are
respondents’ claims that appellants breached a verbal contract with unusual terms.
                                    INTRODUCTION
       In September 2011, appellant Alfonse Castaldi sued respondent Ken Baker to evict
him from 2100 Old Highway, where Coyote Springs Guest Ranch operated. (Mariposa
County Superior Court case No. 2630.) After that suit was settled, Baker filed a first
amended complaint against Alfonse1 in the present case, alleging a dozen causes of
action ranging from breach of contract to financial elder abuse.2 (Mariposa County
Superior Court case No. 10063.) Baker’s suit alleged Alfonse fraudulently entered into a
contract to finance a repurchase of the guest ranch property3 while not intending to
perform according to its terms. Alfonse then allegedly breached that contract by (1)
failing to perform according to its terms, (2) improperly recording a grant deed to the
guest ranch property, and (3) filing the eviction lawsuit against Baker. In the suit, Baker
also claimed that Alfonse and his daughter, Theresa Castaldi, trespassed on the guest
ranch property, and that Theresa stole items from the guest ranch.
       For reasons we explain below, the core issue in this appeal is whether Baker’s
causes of action against the Castaldis “arose” from Alfonse’s unlawful detainer action



       1 We refer to the Castaldis by their first names to avoid confusion. No disrespect
is intended.
       2 We do not know the precise date on which Baker’s original complaint in case
No. 10063 was filed because the complaint is not in the appellate record. Because the
settlement in case No. 2630 explicitly references case No. 10063, the original complaint
in case No. 10063 must have been filed sometime before November 28, 2011, when the
settlement in case No. 2630 was executed.
       3We use the phrase “guest ranch property” in the sense that the guest ranch
allegedly operated at the property. We express no view regarding title to or rightful
possession of 2100 Old Highway.


                                              2.
against Baker for purposes of the anti-SLAPP statute. (See Code Civ. Proc., § 425.16.)4
The trial court concluded that none of Baker’s causes of action against the Castaldis arose
from the eviction suit.
       In contrast, we conclude that some, but not all, of Baker’s causes of action “arose”
from Alfonse’s unlawful detainer action. For example, Baker’s breach of contract claim
alleges three discrete breaches, one of which is Alfonse’s filing of the unlawful detainer
action. Because “at least one” act underlying this cause of action is protected conduct
(Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287), and that act is alleged to be a basis
for liability (Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1183), the cause of
action “arises” from protected activity.
       Conversely, other causes of action are not meaningfully related to the unlawful
detainer action. For example, the cause of action for conversion, which alleges that
Theresa stole items from the guest ranch, is clearly not based on the unlawful detainer
action. The “fact that protected activity may lurk in the background … does not
transform a property dispute into a SLAPP suit.” (Episcopal Church Cases (2009) 45
Cal.4th 467, 478.)
       Hereafter, we will analyze each cause of action and ultimately conclude that the
first, second, third, fourth, seventh, eighth, and twelfth causes of action do not arise from
protected activity and affirm the trial court’s order as to those claims. We also conclude
that the fifth, sixth, ninth, tenth and eleventh causes of action do arise, in part, from
Alfonse’s unlawful detainer action against Baker. Therefore, we will vacate the trial
court’s order as to those causes of action. We will also vacate the order for attorney fees.




       4All future statutory references are to the Code of Civil Procedure, unless
otherwise noted.


                                               3.
                                          FACTS
       A. Unlawful Detainer Action
       Alfonse filed an unlawful detainer action on September 14, 2011, against Baker,
seeking to evict him from 2100 Old Highway. (Case No. 2630.)
              1. Alfonse’s Allegations
       Alfonse claimed that on January 1, 2011, he and Baker orally agreed that Alfonse
would purchase 2100 Old Highway in Baker’s name. Baker would hold legal title for
Alfonse’s “benefit and account.” The agreement also required Baker to pay Alfonse
$1,500 per month commencing January 6, 2011. “[P]ursuant to their agreement,” legal
title to 2100 Old Highway then “passed” to Alfonse on April 7, 2011, through the
recording of a grant deed.
              2. Settlement
       Eventually, the unlawful detainer action was settled. Under the terms of the
settlement, Alfonse would acquire a writ of possession to 2100 Old Highway. The writ
would be stayed until 5:00 p.m. on December 2, 2011. If Baker had not quit the premises
by that time, the sheriff would escort him off the property.
       In the settlement colloquy before the court, Alfonse indicated he understood that
the settlement “does not [a]ffect” case No. 10063. Alfonse also indicated that he
understood the settlement was “without prejudice to either side reserving their rights to
assert or contest right to possession, the deed that got recorded. The right to title, tenancy
– all those issues are not being decided at this time.”
       The court issued an order pursuant to the settlement, which it referred to as a
“stipulation.” Paragraph 6 of that order provided:

               “6.    The parties stipulate and agree this stipulation and any order
       thereon does not represent an agreement to or an adjudication of any issues
       in Case No. 2630, including, but not limited to right of possession, the
       validity of the Deed to plaintiff from defendant Baker, whether there is or is
       not a tenancy relationship, and shall not be an admission in, or res judicata,



                                              4.
       a collateral estoppel or waiver of any issues in Mariposa Superior Court
       Case No. 10063 and/or 2630.” (Italics added.)
       Counsel for Baker and Alfonse signed the order indicating their approval “as to
form and content.” Neither Baker nor Alfonse’s signature appears on the order.
       B. Respondents’ Allegations in the First Amended Complaint
       Sometime before the end of November 2011, and before the unlawful detainer
case was settled, respondents filed the original complaint in the present suit. Then, after
the unlawful detainer action was settled, respondents filed a first amended complaint (the
“complaint”), which alleged the following version of events:
       Coyote Springs Guest Ranch (“Coyote Springs”) originated as a general
partnership between respondent Patricia Oakander (“Oakander”), her husband, and
respondent Ken Baker (“Baker”). It was intended to operate as a “guest ranch facility
and tourist attraction in Mariposa County ….” Originally, Oakander and her husband had
a collective 50 percent interest in the partnership.5 Baker owned the remaining 50
percent interest.
       In 2002,6 Oakander purchased property located at 2100 Old Highway. By 2005,
Coyote Springs was operating at this location, “hosting and entertaining … tourist
customers ….” After the purchase of the property, Baker worked to develop physical
infrastructure for the property including the construction of barns, fencing, water systems,
and a shed. Baker also attended “scores” of public meetings and applied for various
permits necessary to operate Coyote Springs. Baker contributed more than $2 million of
his own money towards the development of the Coyote Springs property. Baker’s then
girlfriend, appellant Theresa Castaldi, “did little toward the development” of Coyote
Springs and “contributed little, if any[,] capital.”


       5The complaint alleges that Mr. Oakander “has since given up his interest in the
partnership and Patricia Oakander owns 50% as her sole and separate property.”
       6   It appears that the guest ranch had operated elsewhere since 1997.


                                               5.
      Theresa’s father, appellant Alfonse Castaldi, began investing in the Coyote
Springs “venture” in or around 2004. In 2005, the 2100 Old Highway property was “put
in [Theresa’s] name.” The complaint alleges that “[i]t has always been understood
anyone holding title to the real property was a participant in the advancement of [Coyote
Springs].”
      In 2006, Baker allowed his 50 percent interest in Coyote Springs to be put in
Theresa’s name. Baker and Theresa agreed that Theresa’s 50 percent interest in Coyote
Springs was “owned jointly between her and Baker.”
      Eventually, the partnership became unable to afford mortgage payments for the
2100 Old Highway property. In 2010, the lender foreclosed on the property. From 2005
to 2010, the property had been used by Coyote Springs “with no expectation of or
payment of rent to [Theresa] Castaldi.” The complaint alleges that Theresa was “well
aware of this arrangement ….”
      In 2010, Baker began negotiating with J.P. Morgan Chase Bank, N.A. to reacquire
the 2100 Old Highway property. He purportedly did so on behalf of himself, Theresa,
Oakander and Coyote Springs. An investor had agreed to acquire the property for the
partnership, but withdrew days before the escrow was to close. Alfonse agreed to “loan”
the money to reacquire the property “for the benefit of” Coyote Springs “and its owners,
[Theresa], Oakander and Baker.” The complaint is not entirely clear, but it appears the
amount Alfonse agreed to loan was $265,000. Title to the property was taken in Baker’s
name “with the understanding the property was for the use and benefit of Coyote Springs
Guest Ranch.” In January 2011, Baker and Theresa moved to the 2100 Old Highway
property.
      The complaint alleged that the “money for the reacquisition came from [Alfonse]
with” an “understanding.” First, Baker would sign a deed in favor of Alfonse to be
delivered and recorded in the event Baker died. Additionally, Alfonse was to apply for a
loan for 80 percent of the purchase price, and the loan proceeds would be made available

                                            6.
to use as part of the down payment for an adjoining parcel integral to the operation of
Coyote Springs (i.e., 2060 Old Highway). The partnership was to pay the monthly
amount due on the loan “to the extent any of the loan proceeds were utilized by the
partnership.” The partnership would pay Alfonse a “return of 5% on the $265,000 plus
additional sums advanced by him to reacquire 2100 Old Highway, to be paid annually on
December 31 of each year, and that the partnership would pay all taxes, insurance and
maintenance” for the 2100 Old Highway property. We will refer to these terms as the
“oral agreement.”7
       Alfonse applied for the loan as contemplated by the oral agreement and was
approved. But, the complaint alleges that Alfonse “did not proceed with the terms of the
agreement when he failed to take any further steps in order to actually obtain the loan.”
In an alleged violation of the agreement, Alfonse acquired the grant deed transferring
2100 Old Highway from Baker to himself and had it recorded in Mariposa County in
April 2011.
       The relationship between Baker and Theresa ended around July 2011. At that
time, Alfonse asserted ownership of the 2100 Old Highway property and demanded that
Baker pay rent or quit the premises. Alfonse filed an unlawful detainer action against
Baker on September 14, 2011, which was designated Mariposa County Superior Court
case No. 2630 (the “unlawful detainer action”).
       At the time of the breakup, Theresa “abandoned her participation” in the Coyote
Springs business. She also moved away from the 2100 Old Highway property. Prior to
her departure, Theresa had performed various tasks for Coyote Springs including
bookkeeping and paying bills. When she left, Baker assumed Theresa’s responsibilities.



       7  We refer to it in this fashion for simplicity. Our use of this term is not meant to
reflect a determination of the merits of respondents’ claims with respect to the existence,
validity, enforceability or substance of the agreement.


                                              7.
        Every week, beginning in September 2011, Theresa began entering the property
used by Coyote Springs “without authority or permission from Baker or Oakander.”
Theresa was allegedly intimidating Coyote Springs employees, taking “business
property” including a computer, taking keys out of vehicles used in business operations
and causing “distraction/commotion” in front of customers.
        Around September 10, 2011, Theresa attempted to sell one of Coyote Springs’s
horses. Deputy sheriffs were called to the scene and had Theresa leave the property.
        C. Causes of Action
        The complaint alleges 12 causes of action for (1) constructive trust; (2) fraud;
(3) partnership dissolution as between Oakander and Theresa; (4) partnership dissolution
as between Baker and Theresa; (5) financial elder abuse; (6) intentional interference with
economic relations; (7) trespass; (8) conversion; (9) intentional infliction of emotional
distress; (10) negligent infliction of emotional distress; (11) breach of contract; and (12)
“cancellation of deed,” respectively.
        D. Special Motion to Strike
        The Castaldis filed an anti-SLAPP motion (§ 425.16) in case No. 10063 on the
grounds that each cause of action was based on the unlawful detainer action Alfonse had
filed against Baker (case No. 2630). Alfonse asserted that his litigation-related activities
in the unlawful detainer action constituted acts performed in furtherance of his rights of
free speech and/or petition, and respondents’ causes of action arose from those protected
acts.
        Respondents argued that the causes of action did not arise from protected acts.
Respondents also argued that Alfonse waived his right to, or was judicially estopped
from, filing the special motion to strike. Specifically, they contended that in the unlawful
detainer stipulation, Alfonse had agreed that Baker could litigate the issue of who had the
right to possession and ownership of 2100 Old Highway. Respondents contended that



                                              8.
Alfonse’s filing of a motion to strike was inconsistent with his prior position embodied in
the unlawful detainer stipulation.
       The trial court denied the motion. The court agreed with Alfonse that judicial
estoppel and waiver did not apply, and that the unlawful detainer action was protected
activity. But the trial court concluded that appellants had failed to show that respondents’
causes of action arose from that activity.
       E. Attorney Fees/Sanctions
       Respondents moved for attorney fees. (§ 425.16, subd. (c)(1).) The trial court
granted the motion and imposed attorney fees on appellants and their counsel, jointly and
severally, in the amount of $70,575. The award was made “pursuant to” sections 425.16,
subd. (c)(1) and 128.5. The court set out the basis for its award as follows:

              “This attorney fees and costs sanction is awarded for the following
       conduct: presenting, filing and advocating a Special Motion to Strike
       Plaintiffs’ First Amended Complaint, and each cause of action therein, that
       was legally and factually frivolous, and completely devoid of merit. Such
       motion was also brought for the purpose of unnecessary delay, harassment
       and to needlessly increase litigation expense….”
       In these consolidated appeals, appellants challenge the denial of their anti-SLAPP
motion and the imposition of attorneys fees.
                                      DISCUSSION
       A. Standard of Review
       We review the trial court’s denial of appellants’ special motion to strike de novo.
(See Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
       B. Waiver/Estoppel
       Initially, respondents contend Alfonse could not bring a special motion to strike
due to principles of waiver and estoppel.8 Specifically, they claim that in the unlawful


       8In the lower court, respondents argued that Theresa lacked “standing” to file a
special motion to strike. They do not make that contention on appeal.


                                               9.
detainer stipulation, Alfonse “specifically agreed” respondents’ claims “could and would
be litigated.”9 The trial court rejected this argument and found that Alfonse did not waive
his right to bring an anti-SLAPP motion. We agree with the trial court’s conclusion on
this point.

       The unlawful detainer action was resolved by settlement and the trial court

issued an order thereon. That order included the following language:

               “6.    The parties stipulate and agree this stipulation and any order
       thereon does not represent an agreement to or an adjudication of any issues
       in Case No. 2630, including, but not limited to right of possession, the
       validity of the Deed to plaintiff from defendant Baker, whether there is or is
       not a tenancy relationship, and shall not be an admission in, or res judicata,
       a collateral estoppel or waiver of any issues in Mariposa Superior Court
       Case No. 10063 and/or 2630.” (Italics added.)
       The order is clear that the stipulation in the unlawful detainer action did not effect
a “waiver of any issues in” in the present action. Yet respondents contend that the
stipulation did effect a waiver of an issue in the present action. Specifically, respondents
contend that Alfonse waived his right to assert the present action is a SLAPP suit. This
interpretation directly contravenes the plain language of the agreement.10

       9 The phrase “could and would be litigated” does not appear in the settlement
colloquy. But even if we accepted respondents’ characterization, we would not find
waiver or estoppel here. Agreeing that a claim can be litigated is far different than
agreeing not to participate in or resist that litigation. Indeed, the filing of an anti-SLAPP
motion is how Alfonse has chosen to “litigate” respondents’ claims. The terms of the
stipulation, outlined above, show that Alfonse only agreed that Baker was not forfeiting
his right to sue for possession and title of 2100 Old Highway.. That is not the same as
agreeing that Baker could sue him, without resistance, for having filed the unlawful
detainer action in the first place.
       10 At oral argument, respondents’ counsel asserted that this interpretation of the
settlement would render it “meaningless.” Not so. Without the stipulation, Alfonse may
have argued that the unlawful detainer settlement had res judicata effect as to some or all
of the issues in the present case. (Cf. Seidell v. Anglo-California Trust Co. (1942) 55
Cal.App.2d 913, 918.) “ ‘[F]ull and fair’ litigation of an affirmative defense – even one
not ordinarily cognizable in unlawful detainer, if it is raised without objection, and if a
fair opportunity to litigate is provided – will result in a judgment conclusive upon issues

                                             10.
       The trial court properly concluded Alfonse did not waive his right to bring a
special motion to strike, nor is he estopped from doing so.
       We will now proceed to the substance of the anti-SLAPP motion.
       C. Anti-SLAPP Analytical Framework
       Ruling on anti-SLAPP motions requires a two-step analysis. (Equilon Enterprises
v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).)
       “First, the court decides whether the defendant has made a threshold showing that
the challenged cause of action is one arising from protected activity. The moving
defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains
were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the
United States or California Constitution in connection with a public issue,’ as defined in
the statute. [Citation.]” (Equilon, supra, 29 Cal.4th at p. 67.)
       Second, if the first prong is satisfied, the court then determines whether the
plaintiff has produced admissible evidence demonstrating “a probability of prevailing on
the claim….” (Equilon, supra, 29 Cal.4th at p. 67; see Evans v. Unkow (1995) 38
Cal.App.4th 1490, 1497 [evidence must be admissible].)




material to that defense….” (Vella v. Hudgins (1977) 20 Cal.3d 251, 256–257; see also
Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 694
[“A court-approved settlement acts as a final judgment on the merits for the purposes of
res judicata”].) Thus, “when litigants to an unlawful detainer proceeding fully try other
issues besides the right of possession, the unlawful detainer judgment is conclusive as to
those other litigated issues. [Citations.]” (Gombiner v. Swartz (2008) 167 Cal.App.4th
1365, 1371.) Without the stipulation, Alfonse may have argued that various issues in the
present case – e.g., the validity of the deed and Alfonse’s claimed right to possession of
2100 Old Highway – were conclusively resolved in his favor in the unlawful detainer
action. The stipulation protects respondents from such a claim and is not “meaningless”
when interpreted according to its plain language.



                                             11.
       Thus, the defendant bears the burden on the first prong, and the plaintiff bears the
burden on the second. (See Kajima Engineering & Construction, Inc. v. City of Los
Angeles (2002) 95 Cal.App.4th 921, 928.)
       While analyzing each prong, courts consider the pleadings and affidavits stating
the facts upon which the defense or liability is based. (§ 425.16, subd. (b)(2).)
              1. First Prong
       The first portion of section 425.16, subdivision (b)(1) sets forth the first prong of
the two-step analysis we outlined above:

              “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 .…”
       (§ 425.16, subd. (b)(1).)
       This provision anticipates at least two inquiries. We must first determine whether
the defendant performed any act in furtherance of his or her constitutional right to
petition or free speech. (§ 425.16, subd. (b)(1).) Here, defendant’s acts in initiating and
prosecuting the unlawful detainer suit are clearly protected under section 425.16. (See
Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1480.)11 Thus, our

       11 While we acknowledge that this point of law is compelled by the language of
the statute, we question its wisdom. The anti-SLAPP statute applies to causes of action
arising from a person’s “right of petition or free speech” under the United States or
California Constitutions. (§ 425.16, subd. (b)(1).) The statute identifies various
categories of protected acts. (§ 425.16, subd. (e).) These categories turn out to be quite
broad. For example, the filing of virtually any lawsuit could arguably be considered
protected activity. (§ 425.16, subd. (e)(1), (2) & (4); see also Jarrow Formulas, Inc. v.
LaMarche (2003) 31 Cal.4th 728, 734–735 (Jarrow); Navellier v. Sletten (2002) 29
Cal.4th 82, 96 (dis. opn. of Brown, J.) [under Navellier decision, “any” suit is a SLAPP
depending on when it is filed].) This has led to “many cases of what might be called
recursive litigation, where – as here – the anti-SLAPP law is invoked after one party sues
another over the latter’s conduct in litigation….” (Old Republic Construction Program
Group v. The Boccardo Law Firm, Inc. (2014) 230 Cal.App.4th 859, 877.)
       While we question the propriety of subjecting such a broad category of litigation
to a specialized motion process, the statutory language is actually quite clear on the issue.

                                             12.
primary focus in this appeal is on the second inquiry, which would have us determine
whether plaintiffs’ cause of action “arose” from the protected act(s) of the defendants.
(See Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal.App.4th 1237,
1239.)
         Mixed causes of action are those containing allegations of both protected and
unprotected conduct. “A mixed cause of action is subject to section 425.16 if at least one
of the underlying acts is protected conduct, unless the allegations of protected conduct are
merely incidental to the unprotected activity.” (Salma v. Capon, supra, 161 Cal.App.4th
at p 1287.) “[A]n alleged act is incidental to a claim … only if the act is not alleged to be
the basis for liability.” (Wallace v. McCubbin, supra, 196 Cal.App.4th at p. 1183, italics
added.)
         It is important to note that there are several considerations which, alone, do not
establish that a cause of action “arose” from protected conduct. First, chronology alone is
insufficient. “[T]he mere fact an action was filed after protected activity took place does
not mean it arose from that activity.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69,
76–77.) Second, the fact that protected activity may have been the impetus for filing the
complaint is not enough. “That a cause of action arguably may have been triggered by
protected activity does not entail that it is one arising from such.” (Id. at p. 78.) Third,
when the allegedly protected activity is the filing of a lawsuit, even the fact that the two
suits encompass overlapping subject matter is not dispositive. That is, even though two
opposing lawsuits may involve the same series of occurrences or transactions, it does not

(See § 425.16, subd. (e) [protecting “any written or oral statement or writing made before
a … judicial proceeding …”]; see also § 425.16, subd. (a) [section shall be construed
broadly]; Jarrow, supra, 31 Cal.4th at pp. 734–735.) And it is not our role “to omit was
has been inserted” into a statute. (§ 1858.) Instead, we will simply observe that the
breadth of the current statute means the anti-SLAPP procedure is yet another arena for
overly litigious individuals to employ scorched-earth tactics. “The cure has become the
disease – SLAPP motions are now just the latest form of abusive litigation.” (Navellier v.
Sletten, supra, 29 Cal.4th at p. 96 (dis. opn. of Brown, J.).)


                                              13.
necessarily follow that the latter suit “arises from” the former under section 425.16,
subdivision (b)(1). (See City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 76–78.) “[A]
responsive but independent lawsuit [may] arise from the same transaction or occurrence
alleged in the preceding lawsuit, without necessarily arising from that earlier lawsuit
itself. [Citation.]” (Id. at p. 78.) Fourth, simply mentioning protected speech or
petitioning activity by the defendant in the complaint is not enough (unless the cause of
action is based on that protected activity). “[A] defendant in an ordinary private dispute
cannot take advantage of the anti-SLAPP statute simply because the complaint contains
some references to speech or petitioning activity by the defendant. [Citation.]’ ”
(Personal Court Reporters, Inc. v. Rand (2012) 205 Cal.App.4th 182, 190.)
       Instead, the critical inquiry is whether the plaintiff’s cause of action is “based on”
defendant’s protected activity. (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78,
original italics.)
               2. Second Prong
       Under the second prong of the anti-SLAPP analysis, courts determine whether
“the plaintiff has established that there is a probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1).)
       D. Analysis
       Before we analyze the individual causes of action, we will correct an apparent
misunderstanding by the trial court regarding the analysis of “mixed” causes of action.
As noted ante, a mixed cause of action satisfies the first prong of section 425.16 analysis
“if at least one of the underlying acts is protected conduct, unless the allegations of
protected conduct are merely incidental to the unprotected activity. [Citation.]” (Salma
v. Capon, supra, 161 Cal.App.4th at p. 1287, italics added.)
       In its rulings on the fifth through eleventh causes of action, the trial court
repeatedly concluded that “Plaintiffs could still have a viable cause of action even if the



                                              14.
[protected activity] did not occur.” “Accordingly,” the court denied the anti-SLAPP
motion as to those causes of action. This is not the correct standard.
       To determine whether allegations of protected conduct are merely incidental, the
court looks to whether the allegations of protected conduct are an independently
“adequate basis for liability under the cause of action ….” (See Haight Ashbury Free
Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1551.) If so,
the allegations of protected conduct are not merely incidental. (See ibid.) Here, the trial
court essentially inverted this analysis by looking to whether the allegations of
unprotected acts were sufficient to establish liability without the allegations of protected
acts. This erroneous standard would allow plaintiffs to “frustrate the purposes of the
SLAPP statute through a pleading tactic of combining allegations of protected and
nonprotected activity under the label of one ‘cause of action.’ ” (Fox Searchlight
Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308, fn. omitted.)
       Having clarified this point of law, we will now proceed to an individualized
analysis of each cause of action. (See City of Colton v. Singletary (2012) 206
Cal.App.4th 751, 769 [trial court correctly considered individual causes of action rather
than overall “thrust” of pleading].)
              1. First Cause of Action: “Imposition of Constructive Trust”
       In the first cause of action, respondents seek imposition of a constructive trust on
the 2100 Old Highway property. They allege that Alfonse fraudulently promised to
perform according to the oral agreement. Respondents allege that had Alfonse not
defrauded them, they would have found another investor. As a result, respondents seek
imposition of a constructive trust.
       “The essence of the theory of constructive trust is to prevent unjust enrichment
and to prevent a person from taking advantage of his or her own wrongdoing.
[Citations.]” (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990.)
The wrongdoing underlying respondents’ constructive trust claim is the allegation that

                                             15.
Alfonse expressed agreement to the terms of an oral agreement he intended to violate.
Thus, the gravamen of this purported12 cause of action was not the filing of the unlawful
detainer action, but rather Alfonse’s allegedly wrongful acquisition of title to the
property. Therefore, this cause of action does not arise from the filing of the unlawful
detainer action, and appellants’ motion was properly denied as to this claim.
              2. Second Cause of Action: Fraud
       In the second cause of action, respondents again allege that Alfonse did not
perform in accordance with the oral agreement and “never intended to abide by the
agreement.” The complaint also alleges that Alfonse intentionally misrepresented a
desire to help respondents develop, maintain, and operate Coyote Springs. Thus, the
“wrongful and injury-producing” acts at the “foundation” of the claim (Castleman v.
Sagaser (2013) 216 Cal.App.4th 481, 490) are Alfonse’s alleged misrepresentations, not
the unlawful detainer action. The anti-SLAPP motion was properly denied as to the fraud
cause of action.
              3. Third and Fourth Causes of Action: Partnership Dissolution
       In the third and fourth causes of action, respondents seek dissolution of the
partnership between (1) Oakander and Theresa (third cause of action); and (2) Baker and
Theresa (fourth cause of action). The essence of both claims is that Theresa “disavowed
any interest in the partnership” and “no longer desires to work in the best interests of the
partnership.” Because these claims are not based on the unlawful detainer action, they do
not arise from the protected activity urged by appellants.


       12 Appellants argue: “A constructive trust is an equitable remedy, not a
substantive claim for relief. [Citations.] The anti-SLAPP statute applies only to a cause
of action, not to a remedy. [Citation.]” Assuming both premises are correct, the resultant
conclusion would be detrimental to appellants’ position. If the constructive trust
allegations are a prayer for relief rather than a cause of action (first premise) and the anti-
SLAPP statute does not apply to remedies (second premise), then the anti-SLAPP statute
does not apply to the constructive trust allegations (conclusion).


                                              16.
                4. Fifth Cause of Action: Financial Elder Abuse
         In the fifth cause of action, respondents allege appellants committed financial
elder abuse against Baker. Specifically, the cause of action alleges appellants took
“numerous actions” to (1) “interfere” with Baker and Coyote Springs operations; (2)
remove and/or evict Baker from 2100 Old Highway and (3) deny Baker the financial
rewards of the time and money he invested in Coyote Springs.
         As we explained ante, Alfonse’s act of attempting to evict Baker from 2100 Old
Highway through an unlawful detainer action is protected conduct under section 425.16.
(See Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1480.) Thus,
this claim is “mixed,” in that it alleges liability based on one protected act and several
unprotected acts. Because this cause of action is mixed, it “is subject to section 425.16 if
at least one of the underlying acts is protected conduct, unless the allegations of protected
conduct are merely incidental to the unprotected activity. [Citation.]” (Salma v. Capon,
supra, 161 Cal.App.4th at p. 1287.) Having determined that “at least one of the
underlying acts is protected conduct,” (ibid) our focus now shifts to whether the
allegations of protected conduct are merely incidental to the unprotected activity. (See
ibid.)
         We emphasize that in analyzing a mixed cause of action, we do not simply count
the number of protected versus nonprotected acts alleged to determine whether the cause
of action arises out of protected conduct. (See Haight Ashbury Free Clinics, Inc., supra,
184 Cal.App.4th at p. 1553.) “[T]he mere fact that there are numerically far fewer
allegations of protected wrongdoing than there are allegations of nonprotected
wrongdoing does not mean that the allegations of protected activity are merely incidental
to either the causes of action or the nonprotected activity….” (Ibid., original italics.)
         Instead, “an alleged act is incidental to a claim … only if the act is not alleged to
be the basis for liability. [Citations.]” (Wallace v. McCubbin, supra, 196 Cal.App.4th at
p. 1183, italics added.) If the complaint “asserts liability and seeks damages” for an act,

                                               17.
then the act is not incidental. (See Haight Ashbury Free Clinics, Inc., supra, 184
Cal.App.4th at p. 1553.)
       Here, Alfonse’s effort to evict Baker (i.e., the unlawful detainer action) is clearly
alleged to be one basis for liability for financial elder abuse. Therefore, the allegation
regarding protected conduct is not “incidental.”13

              5. Sixth Cause of Action: Intentional Interference with Economic
                 Relations
       The sixth cause of action is a brief five sentences, alleging appellants intentionally
interfered with and disrupted Coyote Springs’ business “in numerous ways” as “set forth
in this Complaint.” It also alleges that the “aforementioned acts, as outlined in detail in
this Complaint, were and continue to be disruptive and interfering to Baker, Oakander
and the [Coyote Springs] business operations .…”
       It seems clear that this cause of action is based in part on the unlawful detainer
action. The filing of the unlawful detainer action was an “aforementioned act[]” that was
allegedly “disruptive and interfering to Baker .…” Though not dispositive, the cause of
action also references an alleged conspiracy among appellants to “oust” Oakander and
Baker from the property. We conclude these allegations show that the filing and
prosecution of the unlawful detainer action was one of several acts upon which the
intentional interference with economic relations claim was based.
              6. Seventh Cause of Action: Trespass
       In the seventh cause of action, respondents allege that appellants “wrongfully and

       13 In its ruling, the trial court stated: “[T]he Court finds that the unlawful detainer
does not form the entire basis of this [cause of] action.” (Italics added.) This is not the
correct standard for determining whether a mixed cause of action is subject to the anti-
SLAPP statute. Even when allegations of protected conduct are something less than the
“entire basis” for a cause of action, the anti-SLAPP statute may still apply. Indeed, in
every “mixed” cause of action there are allegations of protected and unprotected activity.
Thus, allegations of protected conduct never comprise the “entire basis” for a mixed
cause of action. If we accepted such a standard, the anti-SLAPP statute would never
apply to mixed claims.

                                             18.
unlawfully” entered onto the 2100 Old Highway property. This claim is clearly based on
acts other than the prosecution of the unlawful detainer action. The court properly denied
the anti-SLAPP motion as to the trespass cause of action.
               7. Eighth Cause of Action: Conversion
       In the eighth cause of action, respondents allege Theresa “removed numerous
items” from the 2100 and 2412 Old Highway properties and attempted to sell them.
Thus, the cause of action is not “based on” the unlawful detainer action. The court
properly denied the anti-SLAPP motion as to the conversion cause of action.
               8. Ninth Cause of Action: Intentional Infliction of Emotional Distress
       In the ninth cause of action, respondents allege appellants caused them emotional
distress by conspiring to oust them from the property, and interfering with the
profitability of Coyote Springs. The cause of action does not identify the specific acts of
interference committed by appellants. However, it is clear from the entirety of the
pleading that one of the ways Alfonse allegedly interfered with Coyote Springs’s
business was the filing of the unlawful detainer action.14 Because the unlawful detainer
action is alleged as one basis for liability, the first prong is satisfied.
               9. Tenth Cause of Action: Negligent Infliction of Emotional Distress
       In the tenth cause of action, respondents allege that appellants negligently inflicted
emotional distress. The cause of action does not incorporate the allegations of the
preceding cause of action for intentional infliction of emotional distress. The injurious
conduct alleged as the basis for liability is appellants’ failure to uphold “certain”
promises and commitments. It is further alleged that appellants negligently allowed
Coyote Springs to be damaged by “their actions,” causing upheaval of the business and
emotional distress to the individual respondents. These allegations of appellants’ “acts”

       14 In an allegation incorporated into each cause of action, the complaint averred
that Alfonse commenced the unlawful detainer action, which was “contrary to the …
interests of” Coyote Springs in 2100 Old Highway.


                                               19.
are woefully vague. Indeed, the only discrete acts identified in this cause of action are
those incorporated by reference.
          Among those alleged acts incorporated by reference is appellants’ prosecution of
the unlawful detainer action. Because one of the acts underlying the liability alleged in
this claim is protected, the first prong was satisfied.
                 10. Eleventh Cause of Action: Breach of Contract
          In the eleventh cause of action, respondents allege that appellants breached the
oral agreement in three ways: (1) by failing to finalize and obtaining an 80 percent
mortgage; (2) by obtaining the grant deed from the title company and recording it; and
(3) by filing the unlawful detainer action.
          This cause of action is clearly based, in part, on the unlawful detainer action. The
filing of the unlawful detainer action is specifically and explicitly identified as a discrete
breach of the alleged contract. Therefore, this allegation is not merely incidental.
                 11. Twelfth Cause of Action: Cancellation of Deed
          In the twelfth cause of action, respondents seek cancellation of the deed
to 2100 Old Highway in favor of Alfonse. The claim is based on allegations that Alfonse
fraudulently induced Baker to sign the deed and then wrongfully demanded the deed
from the title company. Again, these acts are independent of the unlawful detainer
action.
          At oral argument, Alfonse’s counsel argued that his client’s recording of the grant
deed was mere “preparation” for the unlawful detainer lawsuit and was therefore
protected activity. This is far too broad a definition of litigation-related protected
activity. Some cases have held that communications made in preparation for a lawsuit
constitute protected activity under the anti-SLAPP statute. (Briggs v. Eden Council for
Hope & Opportunity (1999) 19 Cal.4th 1106, 1115; see also, Salma v. Capon, supra, 161
Cal.App.4th at p. 1285; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908.)
However, we are aware of no decision that identifies substantive conduct like recording a

                                               20.
grant deed as protected pre-litigation activity under section 425.16. Such a construction
of “protected activity” would drastically and impermissibly expand the scope of the anti-
SLAPP statute.
          The trial court properly denied the anti-SLAPP motion as to the twelfth cause of
action.
          E. Conclusion
          For the reasons explained ante, we conclude the trial court erroneously found that
the fifth, sixth, ninth, tenth and eleventh causes of action did not satisfy the first prong of
the section 425.16 analysis. However, we express no view on whether the second prong
has been satisfied as to those claims. “Because the trial court concluded that [appellants]
had not met [their] burden under the first prong of the section 425.16 analysis, it did not
address the second prong. Although the parties have … briefed the issues pertaining to
the probability of plaintiffs prevailing on their causes of action” it is “more appropriate
that the trial court address these issues in the first instance….” (Birkner v. Lam (2007)
156 Cal.App.4th 275, 286; see, e.g., Tuszynska v. Cunningham (2011) 199 Cal.App.4th
257, 261–262, 267, 271–272.)
                                              II.
                                     ATTORNEY FEES
          Because we vacate the denial of the anti-SLAPP motion in part, we also vacate the
order imposing attorney fees. That order was based on the finding that the anti-SLAPP
motion was “completely devoid of merit.” As explained ante, we conclude otherwise.15

          15
           Appellants filed motions requesting that we take evidence on appeal (§ 909),
make findings of fact, and take judicial notice of certain documents. The motions to take
evidence and make findings requested that we accept evidence and make findings which,
appellants claim, are “relevant to the issue of whether the proper award of attorneys fees
is zero in this instance.” Similarly, the request for judicial notice pertained to documents
purportedly “relevant to the issue of whether Respondents are entitled to any attorneys
fees incurred.” Because we vacate the attorney fees award on other grounds, we deny
these motions.


                                              21.
                                             III.
                                         REMAND
       On remand, the court shall determine whether the plaintiffs carried their burden on
the second prong with respect to the fifth, sixth, ninth, tenth and eleventh causes of
action.16 If the trial court determines that only “a portion of a cause of action … falls
within anti-SLAPP protections,” it may strike only the offending portion of the claim and
allow the remainder of the cause of action to proceed to trial. (See City of Colton v.
Singletary, supra, 206 Cal.App.4th at p. 774; see generally Cho v. Chang (2013) 219
Cal.App.4th 521.)17
       Nothing in this opinion shall prohibit the trial court for re-imposing attorney fees,
if appropriate, after it issues its final ruling on the anti-SLAPP motion. (See § 425.16,
subd. (c)(1).)
       The order denying the parties’ evidentiary objections and requests for judicial
notice will be vacated so that the court may reconsider these rulings as it evaluates the
second prong of the section 425.16 analysis.
                                             IV.
                                      DISPOSITION
       Appellants’ motions to take evidence, make findings, and take judicial notice are
denied.


       16 The trial court need not give further consideration to the first, second, third,
fourth, seventh, eighth, and twelfth causes of action, because we conclude it properly
denied the anti-SLAPP motion as to those causes of action.
       17  For example, even if Alfonse prevails on the second prong analysis with respect
to the breach of contract cause of action, the appropriate remedy would be to strike only
those portions of the cause of action predicated on the unlawful detainer action. Thus,
the court should not strike Baker’s claims that Alfonse breached the contract by
(1) failing to finalize and obtain the 80 percent mortgage and by (2) obtaining the grant
deed from the title company and recording it. Neither of those claims arise from
protected activity.


                                             22.
       As to the first, second, third, fourth, seventh, eighth, and twelfth causes of action,
the order denying the special motion to strike is affirmed. As to the fifth, sixth, ninth,
tenth and eleventh causes of action, the order denying the special motion to strike is
vacated. The court’s ruling on the parties’ evidentiary objections and requests for judicial
notice are vacated.
       The order imposing attorney fees is vacated.
       The matter is remanded for further proceedings consistent with this opinion. The
parties shall bear their own costs on appeal.


                                                          ___________________________
                                                          Poochigian, J.


WE CONCUR:


_________________________
Gomes, Acting P.J.


_________________________
Franson, J.




                                             23.
