Filed 5/12/15 McGuire v. IMT Associates CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


COLIN McGUIRE,
         Plaintiff and Respondent,
                                                                         A143019
v.
IMT ASSOCIATES et al.,                                                   (Alameda County
                                                                         Super. Ct. No. RG14724287)
         Defendants and Appellants.


         Defendants IMT Associates and IMT Associates as successor trustee of the
McGuire Family Irrevocable Trust (collectively IMT) appeal from the denial of their
special motion to strike plaintiff Colin McGuire’s quiet title complaint and from the
imposition of sanctions for filing a frivolous motion. We agree with the trial court that “it
is clear that [the requirements for filing a special motion to strike under Code of Civil
Procedure section 425.16 are] not met in this case and this should have been apparent to
‘any reasonable attorney’ reviewing the applicable case law.” We shall therefore affirm
the order.
                                                     Background
         The complaint in this action that IMT sought to strike was preceded by an
unlawful detainer action that IMT brought to evict McGuire from what apparently had
been a family home in Berkeley. Some four months after the filing of the unlawful
detainer action McGuire filed the instant action for quiet title and declaratory relief. The
complaint acknowledges the filing of the unlawful detainer action and alleges that title to
the property in question is held by IMT, but that: “The basis of [IMT’s] legal interest in


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the subject property are various living trust and irrevocable trust documents and deeds
contained in the chain of title thereto. Based on information and belief, [McGuire] further
alleges that he is a vested beneficiary under the operative trust document(s) contained in
the chain of title.” The complaint further alleges that IMT has “no title, legal, or equitable
interest in the subject property, and further, that any deeds purporting to convey title or
interest to [IMT] are void as a matter of law.” The second cause of action seeking
declaratory relief alleges further that the settlor of the operative irrevocable trust
document, his mother, “lacks the legal capacity to amend, change or modify the trust
agreement,” that she “has been legally incompetent in this regard for several years,” and
seeks a declaration that she “was, at all times relevant hereto with respect to various
transfers in the chain of title and on the trust documents, legally incompetent to the extent
that she lacked legal capacity to transfer and convey title and/or to amend any trust
documents from the date of her declared incompetence henceforward.”
         Arguing that this action arises from the unlawful detainer action, IMT filed a
special motion to strike both causes of action of the complaint under the anti-SLAPP
statute,1 Code of Civil Procedure section 425.16 (section 425.16). The trial court denied
the motion, explaining, “The mere fact that this lawsuit was filed after the unlawful
detainer suit, and even may have been prompted by it, is not sufficient to bring the suit
within section 425.16,” citing City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80 and
Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal.App.4th 1237, 1247-
1248. The court also granted McGuire’s motion for attorney fees and costs, finding the
motion frivolous and awarding fees and costs of $9,100.
         IMT has timely appealed from the trial court’s order.
                                          Discussion
         The basic principles applicable to motions to strike under section 425.16 have
been restated many times. We quote from this court’s opinion in Peregrine Funding, Inc.
v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 669-670:


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    “SLAPP” is an acronym for a strategic lawsuit against public participation.

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       “Section 425.16 provides for the early dismissal of certain unmeritorious claims
by means of a special motion to strike. [Citation.] In this regard, the statute states: ‘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 or California Constitution
in connection with a public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.’ (§ 425.16, subd. (b)(1).)
       “Consideration of a section 425.16 motion to strike 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.’ [Citation.]
       “A defendant who files a special motion to strike bears the initial burden of
demonstrating that the challenged cause of action arises from protected activity.
[Citations.] However, as our Supreme Court has observed, ‘the “arising from”
requirement is not always easily met. [Citations.]’ [Citation.] A cause of action does not
‘arise from’ protected activity simply because it is filed after protected activity took
place. (City of Cotati v. Cashman[, supra,] 29 Cal.4th 69, 76-77.) Nor does the fact ‘[t]hat
a cause of action arguably may have been triggered by protected activity’ necessarily
entail that it arises from such activity. (Id. at p. 78.) The trial court must instead focus on
the substance of the plaintiff’s lawsuit in analyzing the first prong of a special motion to
strike. [Citations.] In performing this analysis, the Supreme Court has stressed, ‘the
critical point is whether the plaintiff’s cause of action itself was based on an act in
furtherance of the defendant's right of petition or free speech. [Citations.]’ [(Ibid.)] In



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other words, ‘the defendant’s act underlying the plaintiff’s cause of action must itself
have been an act in furtherance of the right of petition or free speech. [Citation.]’ (Ibid.)
       “ ‘In deciding whether the “arising from” requirement is met, a court considers
“the pleadings, and supporting and opposing affidavits stating the facts upon which the
liability or defense is based.” (§ 425.16, subd. (b).)’ (City of Cotati v. Cashman, supra, 29
Cal.4th at p. 79.) On appeal, we independently determine whether this material
demonstrates that the cause of action arises from protected activity.” (Peregrine v.
Sheppard, supra, 133 Cal.App.4th at pp. 669-670.)
       Under the principle clearly stated in the Supreme Court’s 2002 decision in City of
Cotati v. Cashman, supra, 29 Cal.4th 69, and since reiterated numerous times, including
in the case cited by the trial court, Copenbarger v. Morris Cerullo World Evangelism,
supra, 215 Cal.App.4th 1237, it is unmistakably clear that McGuire’s quiet title action is
not “based on” the filing of IMT’s unlawful detainer action or other protected activity.
While the filing of an unlawful detainer action is protected activity (e.g., Birkner v. Lam
(2007) 156 Cal.App.4th 275, 281), “the mere fact an action was filed after protected
activity took place does not mean it arose from that activity. The anti-SLAPP statute
cannot be read to mean that ‘any claim asserted in an action which arguably was filed in
retaliation for the exercise of speech or petition rights falls under section 425.16, whether
or not the claim is based on conduct in exercise of those rights.’ ” (City of Cotati v.
Cashman, supra, pp. 76-77.) “[T]he statutory phrase ‘cause of action . . . arising from’
means simply that the defendant’s act underlying the plaintiff’s cause of action must itself
have been an act in furtherance of the right of petition or free speech.” (Id. at p. 78.) And,
therefore, as stated in Copenbarger, “[a] complaint arising out of or based on the dispute
or conduct underlying [an] unlawful detainer action is not subject to a special motion to
strike.” (215 Cal.App.4th at p. 1245.)
       McGuire’s complaint challenging IMT’s title to the property in question and
alleging, apparently, that its claim to title is based on a purported conveyance from an
incompetent person plainly is not based on constitutionally protected petition or free
speech. While the filing of the unlawful detainer action may have prompted McGuire to


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bring his complaint, the complaint is not based on the filing of the unlawful detainer. The
case on which IMT primarily relies, Wallace v. McCubbin (2011) 196 Cal.App.4th 1169,
is readily distinguishable. The two causes of action in that case that were held subject to
the anti-SLAPP statute were for wrongful eviction and retaliatory eviction, based on the
wrongful service of a three-day notice to quit and the filing of an unlawful detainer action
(as well as the filing of a related complaint with San Francisco Animal Care and Control).
(Id. at p. 1182.) The plaintiffs alleged that the unlawful detainer action was brought in
violation of the terms of the governing rent ordinance, and as retaliation prohibited by
provisions of the Civil Code, to which the court held section 425.16 applied despite the
fact that the latter claim was also based in part on some unprotected activity. (196
Cal.App.4th at pp. 1186-1187.) The plaintiffs there expressly sought to impose liability
on the defendant for filing the unlawful detainer action. Here, McGuire seeks to quiet title
but requests no relief based on the filing of the unlawful detainer action. Contrary to the
assertion made repeatedly throughout IMT’s appellate brief, McGuire has not “sued
[IMT] at least in part, if not principally, for filing a complaint containing an unlawful
detainer action.”
       Moreover, the trial court was justified in deeming IMT’s special motion to strike
frivolous, authorizing the imposition of sanctions. (§ 425.16, subd. (c)(1).) Numerous
cases have applied the principle articulated in the 2002 trilogy of Supreme Court
decisions, of which City of Cotati was one, making absolutely clear that actions based on
a dispute underlying an unlawful detainer action are not subject to an anti-SLAPP
motion. Copenbarger was decided 10 months before IMT filed its special motion to
strike and itself cites numerous prior cases arising in comparable contexts holding section
425.16 to be inapplicable. (Copenbarger v. Morris Cerullo World Evangelism, supra, 215
Cal.App.4th at pp. 1245-1247.) IMT did not address any of these cases in the trial court
and despite the trial court’s citation of Copenbarger in its order, makes no attempt to
distinguish that case or any of the cases on which it relies in its briefs to this court. The
two causes of action pleaded in McGuire’s complaint are in no sense “mixed” causes of
action, giving rise to the question whether alleged protected activity is incidental to


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unprotected activity. Nothing on which the complaint is based constitutes constitutionally
protected activity. By this time it should be clear to competent counsel that the mere fact
that the action was brought in response to the filing of the unlawful detainer action is not
sufficient to bring the action within the scope of the anti-SLAPP statute.
                                        Disposition
       The order denying the special motion to strike and imposing sanctions is affirmed.



                                                  _________________________
                                                  Pollak, Acting P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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