Filed 10/30/14 Cotton v. Cotton CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


MARIE COTTON,
         Plaintiff, Cross-defendant and
                                                                     A139072
         Appellant
v.                                                                   (Sonoma County
                                                                     Super. Ct. No. SCV252068)
SOUL COTTON et al.,
         Defendants, Cross-complainants and
         Respondents.


         Following the death of her husband, Marie Cotton sued her stepson, Soul Cotton,
for, among other things, unfair business practices regarding the family-run automotive
body repair shop.1 Soul, together with co-workers, Michael Gonzales, Jay Hillard, and
Duane Mertle (cross-complainants), countersued Marie for various Labor Code
violations, among other causes of action. Soul and his co-workers alleged in an amended
cross-complaint that Marie had (1) threatened to prevent Gonzales from retrieving his
personal property and threatened to take his and his parents’ money unless he changed his
position in the underlying lawsuit; and (2) unlawfully took possession of and destroyed
personal property belonging to Soul and Gonzales. Cross-complainants alleged that
Marie’s demand constituted intimidation and threats (Civ. Code, § 52.1, subd. (b)(3)
[ninth cause of action]) and that her unlawful possession and destruction of their personal

1
        We shall refer to members of the Cotton family by their first names for purposes
of clarity and intend no disrespect.

                                                             1
property constituted conversion (Civ. Code, §§ 1965, 1993.03; Code Civ. Proc., § 1174,
subd. (e) [tenth cause of action]). Marie moved to strike the ninth and tenth causes of
action in the cross-complaint. She contended that the ninth and tenth causes of action
were based upon protected activities under the anti-SLAPP statute (Code Civ. Proc.,2
§ 425.16) and that cross-complainants could not establish a probability of prevailing
because Marie’s communications were subject to the litigation privilege of Civil Code
section 47, subdivision (b). The trial court denied Marie’s motion.
       Marie appeals the denial of the anti-SLAPP motion. She contends the special
motion to strike should have been granted because the ninth and tenth causes of action
are based upon her constitutionally protected activities in connection with pending
litigation and are subject to the litigation privilege (Civ. Code, § 47, subd. (b)).
       Finding that the ninth and tenth causes of action arise from protected activity and
that cross-complainants have not established a probability of prevailing on the merits, we
reverse.
                                        I. BACKGROUND
A.     The Complaint
       Marie and her late husband, John Cotton, owned and operated an automotive body
repair shop known as Coach Kraft Body Shop (CKBS). CKBS was located on Marie and
John’s property in Sonoma County. John’s adult son, Soul and Soul’s son, Cody, lived in
a trailer on that property. John died on September 21, 2011. Marie filed suit against Soul
on July 27, 2012, alleging five causes of action against Soul: unfair business practices;
intentional interference with economic relations; negligence; conversion; and trespass.
The gist of the complaint was that following the death of his father, Soul, operating
through his own business entity, Coach Kraft Autobody (CKA), held himself out as the
owner of CKBS to service providers, governmental entities, and members of the public.
Marie alleged that Soul, without her knowledge or permission, changed the locks at
CKBS and utilized CKBS property, including tools and equipment. After Marie sued


2
       All further undesignated statutory references are to the Code of Civil Procedure.

                                               2
Soul, and before he countersued, Marie filed two unlawful detainer actions against Soul,
Cody, and various “Doe” defendants.3
B.     The Cross-Complaint and Amended Cross-Complaint
       On September 11, 2012, Soul and Gonzales, along with other former CKBS
employees filed a cross-complaint against Marie, alleging various Labor Code violations
regarding non-payment of wages; unfair business practices; unjust enrichment; breach of
contract; and a good faith improver claim (§ 741).
       On October 16, 2012, Marie filed a demurrer to the cross-complaint, arguing,
among other things, that, as a family member, Soul was exempt from the Labor Code
sections upon which he relied. The trial court sustained the demurrer with leave to
amend as to the first through fourth causes of action. The demurrer was overruled in all
other respects.
       At her December 18, 2012 deposition, which was noticed for both the civil action
and unlawful detainer proceedings, Marie testified Gonzales came to her home on
December 5, 2012 and told her that “he didn’t understand Soul’s behavior,” and “he did
not participate or take one item off the property.” Gonzales told Marie that he “wanted
out of the lawsuit.” Marie testified that she told Gonzales that she would not believe it
until she saw it in writing, to which Gonzales replied, “ ‘Write it up. I’ll sign it.’ ” In his
presence and using his words, along with her own input, Marie handwrote a statement
that Gonzales signed. Marie produced a copy of the document at her deposition. It reads
in pertinent part as follows: “Under penalty of perjury, I, Michael Gonzales without
duress, freely enter into this statement. I was unaware of my participation and the details
of the lawsuit . . . served to Marie Cotton . . . I have received a copy . . . of this lawsuit
and have read it. I do not agree with it. The statements written are false, not truthful. I
did not make such statements and for these reasons withdraw from this lawsuit effective
immediately.” (Original capitalization omitted.)


3
       It appears from the record on appeal that Gonzales was not a party to the unlawful
detainer proceedings.

                                                3
       Thereafter, on January 9, 2013, Soul, Gonzales, and the other cross-complainants
filed an amended cross-complaint, alleging, among other things, causes of action for civil
threats and intimidation (Civ. Code, § 52.1, subd. (b) [ninth cause of action]) and
conversion (Civ. Code, §§ 1965, 1993.03, 1174, subd. (e) [tenth cause of action]). The
gist of the ninth cause of action is that Gonzales was threatened into changing his
position in the cross-action against Marie. According to the amended cross-complaint,
when Gonzales went to Marie’s property to retrieve his personal property, she would not
allow him access to it, unless he signed a false statement indicating that he no longer
wanted to pursue the cross-complaint. It was further alleged that Marie told Gonzales
that she “feels terrible about being forced to take his money” and “all of his property, and
also take his parents[’] property,” “including their retirement,” if he continued the cross-
complaint.
       As to the tenth cause of action for conversion, the amended cross-complaint
alleged Marie unlawfully asserted control over the personal property of Soul and
Gonzales, that she ultimately destroyed such property with a bulldozer, and that she told
Gonzales he would have to change his position in the cross-action if he wanted access to
his property.
C.     The Special Motion to Strike
       On February 11, 2013, Marie filed a special motion to strike the ninth and tenth
causes of action in the amended cross-complaint under the anti-SLAPP statute on the
grounds that these causes of action arose from protected activities regarding the pending
litigation. She further contended that her activities were privileged pursuant to Civil
Code section 47, subdivision (b), and as such, cross-complainants could not establish a
probability of prevailing on the challenged causes of action.
       Marie’s special motion to strike included a declaration from her counsel, in which
counsel explained that in the course of the unlawful detainer proceedings, Marie agreed
to provide an extension of time for Soul, his son, and various Doe defendants
(defendants) to vacate the property and remove all of their possessions. The extensions
spanned over two months, the last of which was memorialized in a settlement agreement,


                                              4
which was attached to the declaration. Pursuant to the terms of the settlement agreement,
defendants were required to “voluntarily surrender, vacate, and restore possession of the
premises to [Marie] on or before 5:00 p.m. on November 30, 2012.” The settlement
agreement further specified that defendants “shall remove all of defendants’ personal
‘household property’ from the premises. Any personal ‘household property’ of
defendants left at the premises beyond the agreed upon surrender, vacate, and restore date
shall be deemed abandoned by defendants, and [Marie] may dispose of such abandoned
and personal ‘household property’ in any manner [she] deems appropriate.”
       In opposing the motion to strike, cross-complainants argued, among other things,
that Marie’s “threats, extortion, Bane Act violation under [Civil Code] [s]ection 52.1,
[c]onversion, and violations of property rights under Civil Code [s]ection[s] 1965,
1933.03, and Code of Civil Procedure [s]ection 1174[, subdivision] (e)” did not arise
from protected activity within the meaning of the anti-SLAPP statute. They further
argued that to the extent Marie could demonstrate her acts arose from protected activity,
such acts were not privileged as they constituted civil extortion and actionable
conversion.
       The opposition included declarations from Soul and Gonzales. In his declaration,
Soul averred that he was unable to retrieve his “household property” from Marie’s
property by the November 30, 2013 [sic] deadline because it had been raining for five
days and Marie had “ ‘borrowed’ ” and not returned the trailer needed for the move. He
further declared that Marie had barricaded the access to his residential and commercial
property and destroyed his property with a bulldozer.
       In his declaration, Gonzales stated that he called Marie on December 5, 2012, after
he discovered the barricade on her property. When Gonzales met with Marie to get his
car from her property, she told him that he had filed the “ ‘wrong’ ” lawsuit. According
to Gonzales, Marie told him that he “did not have anything to gain from the lawsuit” and
that he “would be responsible for the costs of the suit.” Marie reportedly told Gonzales
that if he could not pay those costs, she would “ ‘garnish’ ” his wages and if that was not
enough she “would make [his] parents responsible for the money.” She then handed


                                             5
Gonzales a handwritten document and told him that if he wanted to avoid such financial
consequences and if he wanted to get his car, he would sign the document withdrawing
his participation in the lawsuit.
       In her reply to the opposition to the special motion to strike, Marie asserted that
the “opposition papers, which now claim that [her] conduct amounted to some kind of
criminal action, illustrate precisely why the claims should be stricken as they amount to
‘Strategic Litigation Against Public Participation.’ She argued that the only
“ ‘property’ ” actually identified by Soul or Gonzalez in their declarations was a vehicle
“owned by [] Gonzales, who was not even a party to the unlawful detainer action,” and
who “did not have any rightful claim to enter” her property without her “permission.”
Marie further asserted that there was “absolutely nothing alleged which suggests any
‘extortion’ of any kind as defined in the law.” She adamantly argued that the “criminal
exception” identified in Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley) had no
application in the instant case. Marie also lodged numerous objections to the declarations
of Soul and Gonzalez.
D.     Ruling and Hearing on Special Motion to Strike
       Prior to the May 14, 2013 hearing on the special motion to strike, the trial court
issued a tentative ruling, which appeared to grant the motion as to the ninth cause of
action for threats and intimidation and deny the motion as to the tenth cause of action for
conversion. The tentative ruling provides, in pertinent part, as follows: “Marie Cotton
has met her burden as [to] the 9th COA, as the allegations do rest primarily on acts taken
in furtherance of the pending lawsuit, and were not illegal under the Flatley standard.
However, she has not carried her burden as to the 10th COA for conversion. [¶] Marie
Cotton argues that the 9th COA is fatally flawed in that the acts alleged fall under the
litigation privilege, and therefore she cannot be held liable. . . . [¶] Was Marie Cotton’s
alleged behavior (extortion) protected by the litigation privilege in [Civil Code section]
47 [?] . . . The litigation privilege does protect from any tort except malicious
prosecution. Here, the question of [sic] whether Marie Cotton’s alleged extortion, in



                                              6
furtherance of defending herself from litigation was privileged. The parties should come
prepared to the hearing to discuss this.” (Italics added.)
       At the May 14, 2013 hearing, Marie’s counsel argued that the motion should be
granted as to the tenth cause of action as well. Counsel argued that although the tenth
cause of action was given the title of conversion, it essentially incorporated all of the
allegations of the ninth cause of action and relied “heavily upon the fact that the property
at issue raised in both the ninth and tenth causes of action were the subject of some sort
of settlement agreement.” Marie’s counsel argued that, for purposes of analysis, “the
ninth and tenth causes of action really are the same.”
       In the written order after hearing, the trial court modified the tentative ruling and
denied the special motion to strike in its entirety. As in the tentative ruling, the trial court
ruled that Marie had not met her burden as to the tenth cause of action conversion, but
met her burden as to the ninth cause of action, explaining that the allegations rested
primarily on acts taken in furtherance of the pending lawsuit, and were not illegal as a
matter of law under the Flatley standard. Nevertheless, the trial court ruled that Marie’s
alleged extortive behavior was not protected by the litigation privilege. (Civ. Code,
§ 47.) In so ruling, the court reasoned that “the communicative acts were (allegedly)
used in furtherance of the noncommunicative conduct, to wit, extortion. Liability would
not be based on Marie Cotton’s statements, but rather her alleged use of fear and
intimidation to induce [Gonzales] to sign the declaration.”




                                               7
                                      II. DISCUSSION
A.     Applicable Law and Standard of Review
       “A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or
punish a party’s exercise of constitutional rights to free speech and to petition the
government for redress of grievances. [Citation.] The Legislature enacted . . . section
425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of
lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]”
(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056 (Rusheen).) The statute 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 [or cross-complainant] has
established that there is a probability that the plaintiff [or cross-complainant] will prevail
on the claim.” (§ 425.16, subd. (b)(1).) The Legislature has directed that the language of
the statute be “construed broadly.” (§ 425.16, subd. (a).)
       Subdivision (e) of section 425.16 identifies four general categories of activities
that constitute protected “ ‘act[s] in furtherance of a person’s right of petition or free
speech under the United States or California Constitution in connection with a public
issue.’ ” As used in section 425.16, “ ‘act in furtherance of a person’s right of petition or
free speech under the United States or California Constitution in connection with a public
issue’ includes: (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, (3) any written or oral statement or writing made in a place
open to the public or a public forum in connection with an issue of public interest, 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.” (§ 425.16, subd. (e).) Conduct or speech that is potentially subject to


                                               8
anti-SLAPP protection under clauses (1) and (2) of section 425.16, subdivision (e)—
unlike clauses (3) and (4)—do not have a limitation that the speech or petitioning rights
concern an issue of public interest. (Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106, 1117-1118.)
       The anti-SLAPP motion here concerns statements that Marie claims are protected
under subdivisions (e)(1) and (e)(2), namely, “any written or oral statement or writing”
made before a “judicial proceeding” or “made in connection with an issue under
consideration or review by a . . . judicial body.” (§ 425.16, subd. (e)(1) & (2).) To the
extent Marie’s motion involves her alleged acts of conversion, she maintains that such
conduct is based on her protected statements.
       A court’s consideration of an anti-SLAPP motion involves 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. 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. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it
then 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
(Equilon).)
       In order to establish a probability of prevailing on the claim, “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.]” (Wilson v. Parker, Covert & Chidester (2002) 28
Cal.4th 811, 821, superseded by statute on other grounds as stated in Hutton v. Hafif
(2007) 150 Cal.App.4th 527, 547.) “Thus, plaintiffs’ burden as to the second prong of
the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment.”
(Navellier v. Sletten (2003) 106 Cal.App.4th 763, 768.)



                                              9
       We review the trial court’s decision to grant or deny an anti-SLAPP motion de
novo. (Flatley, supra, 39 Cal.4th at p. 325.) In doing so, we consider “the pleadings, and
supporting and opposing affidavits stating the facts 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 [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.]’ [Citation.]”
(Flatley, supra, 39 Cal.4th at p. 326.)
B.     Protected Activity
       In determining whether a plaintiff’s cause of action arises from any act in
furtherance of a defendant’s right to petition or free speech, we do not focus on “the form
of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his
or her asserted liability—and whether that activity constitutes protected speech or
petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.) We review the gravamen of
a cause of action to see if it is based on defendant’s protected activity. (McConnell v.
Innovative Artists Talent & Literary Agency, Inc. (2009) 175 Cal.App.4th 169, 177;
Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) If the cause of
action alleges both protected and unprotected activity, it will be subject to a section
425.16 motion unless the protected conduct is merely “incidental” to the unprotected
conduct. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287-1288; Gallanis-Politis v.
Medina (2007) 152 Cal.App.4th 600, 614.)
       “ ‘A cause of action “arising from” defendant’s litigation activity may
appropriately be the subject of a section 425.16 motion to strike.’ [Citations.] ‘Any act’
includes communicative conduct such as the filing, funding, and prosecution of a civil
action. [Citation.]” (Rusheen, supra, 37 Cal.4th at p. 1056, italics added [obtaining a
writ of execution and levying on a judgment debtor's property was protected activity];
accord Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 489 [attorney’s alleged
improper solicitation of a client and wrongful enforcement of a settlement agreement was
protected activity (Taheri)]; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087 [“a


                                               10
cause of action arising from a defendant’s alleged improper filing of a lawsuit may
appropriately be the subject of a section 425.16 motion to strike”] (Chavez)); Dowling v.
Zimmerman (2001) 85 Cal.App.4th 1400, 1420 [attorney letter regarding dispute client
had with third party subject to anti-SLAPP motion] (Dowling).)
       In the present case, the cross-complaint alleged that Marie engaged in the
following activity: 1) On or about December 2, 2012, “[a]fter having been involved in
this lawsuit,” Marie “blocked” Soul’s and Gonzales’s “access to their personal and
business property;” 2) on or about December 2, 2012, Marie “intentionally harm[ed] and
destroy[ed]” the property of Soul and Gonzales by “various means, including causing it
to be run over with a bull dozer;” 3) on or about December 5, 2012, Marie told Gonzales
that “if he wanted access to his property, . . . he would have to change his position in this
very lawsuit;” and 4) on or about December 5, 2012, Marie told Gonzales that “if he
drops the suit and goes away, he would be saving himself and his parents money,
property and their retirement, and [Marie] would hate to take it but would be forced to if
he continues with this lawsuit.”
       The gravamen of the ninth and tenth causes of action in the amended cross-
complaint is that Marie acted tortiously by threatening Gonzales so that he would drop
out of the action against her, by refusing to allow him access to his property unless he
changed his litigation position, and by interfering with Soul and Gonzales’s ownership
interest in property subject to either the unlawful detainer action or the cross-complaint.
This litigation activity is subject to an anti-SLAPP motion. (See Rusheen, supra, 37
Cal.4th at p. 1056; Taheri, supra, 160 Cal.App.4th at p. 489; Chavez, supra, 94
Cal.App.4th at p. 1087; Dowling, supra, 85 Cal.App.4th at p. 1420.)
       Cross-complainants argue that Marie’s actions were “criminal” and thus do not
qualify for protection under the anti-SLAPP statute. We are not persuaded. The mere
allegation of illegality is not sufficient to remove an action from section 425.16’s motion
to strike procedure. “[C]onduct that would otherwise come within the scope of the anti-
SLAPP statute does not lose its coverage . . . simply because it is alleged to have been
unlawful or unethical.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 910-911.) It


                                             11
is only in the “narrow circumstance” in which “the defendant concedes, or the evidence
conclusively establishes, that the assertedly protected speech or petition activity was
illegal as a matter of law, [that] the defendant is precluded from using the anti-SLAPP
statute to strike the plaintiff's action.” (Flatley, supra, 39 Cal.4th at pp. 316, 320; see
also Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 285 [where “a
defendant’s assertedly protected constitutional activity is alleged to have been illegal . . .,
the illegality must be established as a matter of law either through the defendant’s
concession or because the illegality is conclusively established by the evidence”]; Malin
v. Singer (2013) 217 Cal.App.4th 1283, 1298-1299 [where extortion claim based on an
attorney demand letter did not constitute criminal conduct as a matter of law, it was
subject to dismissal under the anti-SLAPP statute].) “If, however, a factual dispute exists
about the legitimacy of the defendant’s conduct, it cannot be resolved within the first step
but must be raised by the plaintiff in connection with the plaintiff’s burden to show a
probability of prevailing on the merits.” (Flatley, supra,39 Cal.4th at p. 316; see also
Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th
449, 460 [where “the legality of [the defendant’s] exercise of a constitutionally protected
right [is] in dispute in the action, the threshold element in a section 425.16 inquiry has
been established”].)
       For example, in Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356 (Paul),
disapproved on another point in Equilon, supra, 29 Cal.4th 53, 68, fn. 5, the court
addressed a similar argument. There, the defendants conceded that, as a matter of law,
their conduct was illegal and a violation of the rules prohibiting money laundering set
forth in the Political Reform Act. (Paul, supra, 85 Cal.App.4th at p. 1367.) The court
held that under those circumstances, the defendants’ conduct was not protected by the
anti-SLAPP statute. (Ibid.) The court emphasized, however, that “had there been a
factual dispute as to the legality of defendants’ actions, then we could not so easily have
disposed of defendants’ motion.” (Ibid.)
       In Flatley, supra, 39 Cal.4th 299, our Supreme Court agreed with Paul’s
conclusion that section 425.16 cannot be invoked by a defendant whose assertedly


                                              12
protected activity is illegal as a matter of law. (Flatley, supra, 39 Cal.4th at p. 317.) The
defendant in Flatley was an attorney who sent a letter to the plaintiff demanding a seven-
figure payment. The court concluded that the defendant’s “communications constituted
criminal extortion as a matter of law and, as such, were unprotected by the constitutional
guarantees of free speech or petition.” (Id. at p. 305.) In so holding, the court explained
that “where either the defendant concedes the illegality of its conduct or the illegality is
conclusively shown by the evidence, the [anti-SLAPP] motion must be denied.” (Id. at
p. 316.)
       In Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th
1644 (Mendoza), the plaintiff alleged that the defendant sold information to plaintiff’s
prospective employer it obtained from the Megan’s Law Web site in violation of a
statute, Penal Code section 290.4, subdivision (d)(2)(E). In opposition to the defendant’s
anti-SLAPP motion, the plaintiff argued that the defendant’s “illegal” conduct was not
protected activity. (Mendoza, supra, 182 Cal.App.4th at p. 1653.) The court, however,
rejected this argument. It stated: “Our reading of Flatley leads us to conclude that the
Supreme Court’s use of the phrase ‘illegal’ was intended to mean criminal, and not
merely violative of a statute.” (Id. at p. 1654; accord G.R. v. Intelligator (2010) 185
Cal.App.4th 606, 616 [failure to redact information in violation of a court rule was “not
the type of criminal activity addressed in either Flatley . . . or Paul ”].)
       Here, Marie does not concede she engaged in illegal activity, and cross-
complainants have not conclusively shown by evidence that Marie’s conduct was illegal
as a matter of law. Indeed, Marie flatly denies threatening Gonzales or otherwise
pressuring him into signing the statement renouncing his participation in the cross-
complaint. As stated in Marie’s supporting declaration, Gonzales approached her about
the lawsuit; she averred that she believed Gonzalez did this in order to set her up.
Accordingly, Marie’s alleged activities do not fall into the narrow exception for illegal
activity.
       Nevertheless, cross-complainants contend that Marie’s conduct resulting in the
“destruction of the property of another” does not constitute protected activity within the


                                               13
ambit of the anti-SLAPP statute. In support of this position, they cite to Novartis
Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143
Cal.App.4th 1284, 1296-1297 (Novartis), which held that protest acts of vandalism were
not subject to the anti-SLAPP statute. Cross-complainants’ reliance on Novartis is
misplaced. In Novartis, the plaintiffs sued a corporation formed for the purpose of
supporting an international campaign to expose the plaintiffs’ abusive treatment of
animals. (Id. at p. 1288.) The plaintiffs sought injunctive relief against the defendant
based on claims that the individuals acting for the defendant engaged in various acts of
unlawful harassment, threats, trespass, and property destruction. (Id. at pp. 1289-1293.)
The defendant claimed that its activities were protected acts of free speech. (Id. at
p. 1296.) The Court of Appeal disagreed, stating: “[T]he evidence conclusively
establishes that the activities described at length in the complaint, and about which there
is no dispute, are illegal as a matter of law.” (Ibid.) Novartis is distinguishable because
the causes of action asserted by the plaintiffs in that case indisputably arose directly from
the unlawful actions of the defendant. For the reasons stated above, the same is not true
here.
        In sum, virtually all of Marie’s alleged wrongful conduct arose from her litigation
activity and none of it was, as a matter of law, illegal. Marie therefore has made the
threshold showing that the ninth and tenth causes of action are subject to an anti-SLAPP
motion.
C.      Probability of Prevailing on the Merits
        Having determined that Marie’s alleged conduct falls within the ambit of the anti-
SLAPP statute, we turn to the issue of whether cross-complainants have demonstrated a
probability they will prevail on the challenged causes of action.
        Marie argues that cross-complainants cannot demonstrate a probability of success
on the merits because her conduct is absolutely privileged under the litigation privilege.
The litigation privilege, as codified by Civil Code section 47, subdivision (b), “ ‘ “applies
to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants
or other participants authorized by law; (3) to achieve the objects of the litigation; and (4)


                                             14
that [has] some connection or logical relation to the action.” [Citation.] The privilege “is
not limited to statements made during a trial or other proceedings, but may extend to
steps taken prior thereto, or afterwards.” [Citation.]’ ” (Olsen v. Harbison (2010) 191
Cal.App.4th 325, 333.) The privilege also applies to conduct outside the courtroom.
(O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134.) “ ‘Any doubt as to whether the
privilege applies is resolved in favor of applying it.’ [Citations.]” (Tom Jones
Enterprises, Ltd. v. County of Los Angeles (2013) 212 Cal.App.4th 1283, 1294.)
       “Because the litigation privilege protects only publications and communications, a
‘threshold issue in determining the applicability’ of the privilege is whether the
defendant’s conduct was communicative or noncommunicative. [Citation.] The
distinction between communicative and noncommunicative conduct hinges on the
gravamen of the action. [Citations.] That is, the key in determining whether the privilege
applies is whether the injury allegedly resulted from an act that was communicative in its
essential nature.” (Rusheen, supra, 37 Cal.4th at p. 1058; accord Brown v. Kennard
(2001) 94 Cal.App.4th 40, 45 (Brown) [“The litigation privilege applies only to torts
arising from communicative acts; it does not protect purely noncommunicative tortious
conduct”]. (Fn. omitted.))
       1.     Civil Threats and Intimidation
       The ninth cause of action is for civil threats and intimidation in violation of Civil
Code section 52.1, also known as the Bane Act. (See Shoyoye v. County of Los Angeles
(2012) 203 Cal.App.4th 947, 955.) “ ‘The essence of a Bane Act claim is that the
defendant, by the specified improper means (i.e., “threats, intimidation or coercion”),
tried to or did prevent the plaintiff from doing something he or she had the right to do
under the law or to force the plaintiff to do something that he or she was not required to
do under the law. [Citation.]’ [Citation.]” (Id. at pp. 955-956.)
       The cross-complaint alleged that Marie violated that Bane Act by 1) threatening
Gonzalez and his parents with financial ruin unless he changed his position in the instant
lawsuit and 2) denying Gonzales access to his personal property unless he changed his
position in the instant lawsuit. In support of this cause of action, Gonzales filed a


                                             15
declaration contradicting his prior written statement, in which he declared under penalty
of perjury that he freely and without duress withdrew from the cross-complaint. In his
supporting declaration, Gonzales stated that he called Marie and asked if he could get his
car from her property. When he met with Marie, she told him that the lawsuit he had
filed was wrong. Marie allegedly told Gonzales that he “did not have anything to gain
from the lawsuit,” and that he “would be responsible for the costs of suit and if [he]
couldn’t pay she would ‘garnish’ [his] wages.” She also purportedly threatened to hold
his “parents responsible for the money.” According to Gonzales, Marie said that he could
get his car back and avoid any financial consequences if he signed the handwritten
document she prepared.
       Marie, however, stated in her reply declaration that she disputed “each and every
lie” contained in the opposing declarations. Marie stated that the so-called “ ‘personal
vehicle’ ” referred to in Gonzales’s declaration was inoperable. She declared the
following: “It was on my property for at least a year prior to its removal, along with a
truck that he also kept in my back property. On at least six occasions prior to December
5, 2012, I had arranged with Mr. Gonzales for him (and had begged him) to come and
remove it from my property. He repeatedly failed to show up even though he only lives
one driveway away from my property. The day he finally came to remove the vehicle, he
contacted me first and asked if he could speak with me about the lawsuit . . . We talked
about the lawsuit. It was amicable . . . Everything he told me, I put in the statement. I
did not threaten to keep his junk vehicle; it was not in my interest to do so.” Marie
further averred that she “wrote the statement out, in his presence, and with his input. He
was free to leave at any time, or refuse to sign it. He read it, and signed it, of his own
free will. It was a friendly meeting. I now believe that he did all of this to take
advantage of me and set me up in some way.”
       It is clear that Marie’s only conduct in connection with the alleged Bane Act
violation were the alleged verbal threats made in the pending litigation. This
communicative conduct is protected by the litigation privilege. (See, Rusheen, supra, 37
Cal.4th at p. 1058; Malin v. Singer, supra, 217 Cal.App.4th at p. 1302.) Cross-


                                             16
complainants thus did not meet their burden of showing they could prevail on the civil
threats and intimidation cause of action.
       2.     Conversion
       The tenth cause of action is for conversion. “ ‘ “Conversion is the wrongful
exercise of dominion over the property of another. The elements of a conversion are the
plaintiff’s ownership or right to possession of the property at the time of the conversion;
the defendant’s conversion by a wrongful act or disposition of property rights; and
damages.” ’ [Citation.] ” (Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38,
45.) A cause of action for conversion can be based on either the taking of property or its
intentional destruction or alteration. (5 Witkin, Summary of Cal. Law (10th ed. 2005)
Torts, §§ 710, 711, pp. 1034-1035.)
       According to the amended cross-complaint, Marie violated various unlawful
detainer laws4 and committed conversion by 1) blocking Soul’s access to his property and
destroying said property; and 2) blocking Gonzales’s access to his property, destroying
said property, and threatening Gonzales to change his position in the instant litigation in
order to gain access to his property.
       In support of the allegations that Marie committed conversion with respect to
Soul’s property, Soul filed a declaration stating that he and Marie had reached a
settlement in the unlawful detainer action, in which he and his son agreed to vacate the
premises and remove all of their “ ‘residential’ ” and “ ‘household’ ” property on or
before November 30, 2012. Soul further averred that he was unable to retrieve his
property prior to the agreed upon deadline because “it had rained for five straight days
prior” and because Marie had “ ‘borrowed’ ” and not returned a trailer needed for the
move. Soul believed his attorney had spoken with Marie’s attorney and the two agreed
that he could have through the weekend to retrieve his belongings. However, when Soul


4
      The tenth cause of action is based on purported violations of Civil Code section
1965 (“Surrender of Personal Property by Tenant”), Civil Code section 1993.03
(“Disposition of Property Remaining on Premises at Termination of Commercial
Tenancy”), and section 1174 (“Judgment for Possession of Premises”).

                                             17
attempted to get his property that weekend, he discovered that various items of his “
‘residential’ ” and “ ‘commercial’ ” property, along with Gonzales’s “personal vehicle”
were behind a barricade on Marie’s property. Despite numerous pleas, Soul was unable
to retrieve his property; at some point, he “observed a large bulldozer, bulldozing and
destroying” his commercial and residential property.
       In support of the motion to strike, Marie submitted a declaration from her attorney,
stating that “[i]n the course of the unlawful detainer proceedings, [Marie] agreed to
provide an extension of time for the defendants [Soul and his son Cody] to vacate the
property and remove all of their possessions. The extensions lasted over two months in
total, that last which was memorialized” in the settlement agreement. The November 5,
2012 settlement agreement, which was attached as an exhibit, provided, in, pertinent part,
as follows: “Defendants shall voluntarily surrender, vacate, and restore possession of the
premises to plaintiff on or before 5:00 p.m. on November 30, 2012. Failure by
defendants to surrender, vacate and restore possession to plaintiff shall constitute a
default under this agreement . . .[¶] Defendant shall remove all of defendants’ personal
‘household property’ from the premises. Any personal ‘household property’ of
defendants left at the premise beyond the agreed upon surrender, vacate and restore date
shall be deemed abandoned by defendants, and plaintiff may dispose of such abandoned
personal property ‘household property’ in any manner plaintiff deems appropriate . . . .
[¶] . . . [¶] Defendants herein waive any right of appeal and any further stay of
enforcement beyond the stipulated vacate, surrender, and restore date for any reason. The
parties hereto agree that should such request for stay or appeal be brought, it shall be
denied by the court based on this stipulation . . . .”
       Soul offered no evidence that the settlement agreement was invalid. Although he
stated that rainy weather occurring five days before the November 30, 2012 deadline
hindered his ability to retrieve his possessions, he offered no evidence that he was
precluded from accessing his property between 5th and 25th of November. It is thus
undisputed that Marie’s conduct in connection with the alleged conversion and
destruction of Soul’s property was expressly authorized by the November 5, 2012


                                               18
settlement agreement signed by Marie and Soul. Clearly, Marie’s conduct was related to
the litigation objective of the unlawful detainer action and is within the litigation
privilege. Ample authority supports this conclusion.
       For example, in Brown, supra, 94 Cal.App.4th 40 the plaintiff alleged that the
defendant, an attorney, wrongfully caused a writ of execution to be levied upon his
exempt funds. (Id. at p. 43.) As a preliminary matter, the court noted that “judgment
enforcement efforts, as an extension of a judicial proceeding and related to a litigation
objective, are considered to be within the litigation privilege.” (Fn. omitted.) (Id. at
pp. 49-50.) The court then held that the privilege not only protects the communicative
act of applying for a writ of execution, “it also extends to the act of carrying out the
directive of the writ. To hold otherwise would effectively strip the litigation privilege of
its purpose.” (Id. at p. 50, italics added, fn. omitted.) The court further stated that “the
policy underlying the litigation privilege of encouraging free access to the courts by
discouraging derivative litigation simply outweighs the policy of providing [the plaintiff]
with a tort remedy for an allegedly wrongful enforcement of a judgment.” (Id. at p. 50.)
       In Rusheen, the California Supreme Court approved of and refined the holding in
Brown. The high court concluded that “where the cause of action is based on a
communicative act, the litigation privilege extends to those noncommunicative actions
which are necessarily related to that communicative act.” (Rusheen, supra, 37 Cal.4th at
p. 1052.) In Rusheen, attorney Barry Cohen obtained on behalf of his client a default
judgment against Terry Rusheen. Cohen permitted his client to take steps to collect on
the judgment, such as obtaining a writ of execution and levying on Rusheen’s property in
Nevada. (Rusheen, supra, 37 Cal.4th at pp. 1053-1054.) Rusheen subsequently sued
Cohen for abuse of process. He claimed that Cohen obtained the default judgment by
filing false and perjurious declarations. (Id. at p. 1054.) Rusheen argued that the
wrongful act of levying on property in execution of judgment was a noncommunicative
act and thus unprivileged. (Rusheen, supra, 37 Cal.4th at p. 1061.) The California
Supreme Court, however, held that even if levying on property involved
noncommunicative conduct, “the gravamen of the action was not the levying act, but the


                                              19
procurement of the judgment based on the use of allegedly perjured declarations of
service.” (Id. at p. 1062.) The court further held that because the gravamen of the
complaint was a privileged communication, the privilege extended to “necessarily related
noncommunicative acts (i.e., act of levying).” (Ibid.)
       So too here, Marie’s alleged noncommunicative acts of barricading and destroying
Soul’s property were necessarily and undeniably related to the litigation objective of the
unlawful detainer action.
       Cross-complainant’s second basis for conversion is that Marie interfered with
Gonzales’s property by blocking his access to it, destroying it, and telling him he could
only access his property by changing his position in the instant litigation. The only
property referenced in Gonzales’s declaration was his “personal vehicle.” According to
his declaration, Gonzales discovered on December 2, 2012 that his car had been
barricaded behind a gate on Marie’s property. After several “attempt[s]” to contact Marie
on the telephone, he reached her on December 5, 2012. Gonzales declared that the only
reason he signed the document prepared by Marie was that he wanted to get his car. He
returned to Marie’s property three days later and retrieved his car.
       In addition to her declaration describing Gonzales’s “personal vehicle” as an
inoperable “junk vehicle,” Marie submitted a declaration from a longtime visitor to her
property. In his declaration, Robert Rowland stated that Gonzales’s “ ‘personal
vehicle’ ” had been “sitting in the back of Marie Cotton’s property in pieces for over two
years.” As Rowland had been coming to Marie’s property for the last 25 years, he had
personal knowledge of this fact. Rowland stated that he “personally waited for Gonzales
to show up on several occasions” (at least four, possibly more) when Gonzales was
supposed to pick up his Buick, “but he never showed up.” Finally, Rowland “pushed the
non-operative vehicle to the front parking lot off of Marie’s land . . . .”
       Gonzales’s claim of conversion is based, in part, on Marie’s alleged threat to
withhold access to his property unless he changed his position in this lawsuit. This
communicative conduct is the same conduct alleged in the ninth cause of action. For the
reasons discussed above, it was protected by the litigation privilege. To the extent


                                              20
Gonzales’s claim is based on Marie’s alleged noncommunicative conduct of blockading
and destroying his “personal and business property,” he presented no evidence to support
this claim. In his declaration, Gonzales only referred to being temporarily denied access
to his car, which he ultimately retrieved. Insofar as Gonzales claimed that Marie
unlawfully blocked his access to his car, Marie presented two declarations stating that
Gonzales had been requested to remove his vehicle from her property on numerous
occasions, yet he failed to do so. Gonzales presented no evidence contradicting these
facts or otherwise establishing his right to store his vehicle on Marie’s property. Notably,
there is no indication that Gonzales was ever a defendant in the unlawful detainer
proceedings.
       It is thus undisputed that Marie’s only conduct in connection with alleged
interference and destruction of Gonzales’s personal and business property was to put a
barricade on her own property that limited Gonzales’s access to his inoperable vehicle.
This alleged interference was necessarily related to the communicative and privileged
conduct (i.e., alleged threats) in the instant action.
                                     III. DISPOSITION
       The order denying Marie’s special motion to strike the ninth and tenth causes of
action in the amended cross-complaint is reversed and the trial court is directed to enter a
new order granting the motion. Marie is entitled to recover her costs on appeal.




                                               21
                                 _________________________
                                 REARDON, J.


We concur:


_________________________
RUVOLO, P. J.


_________________________
RIVERA, J.




                            22
