Filed 9/3/14 USAA Federal Savings Bank v. Soldis CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


USAA FEDERAL SAVINGS BANK,
         Plaintiff and Respondent,
                                                                     A138746
v.
JOSEPH SOLDIS,                                                       (Sonoma County
                                                                     Super. Ct. No. SCV-252561)
         Defendant and Appellant.


         Appellant Joseph Soldis (Soldis) and respondent USAA Federal Savings Bank
(usually, the Bank) have a long and checkered history. It began in 1998, when Soldis
opened his first checking account at the Bank. Soldis overdrew the account, but did not
pay it back, and in 2002 the Bank “charged off” the debt—though the debt remained on
the Bank’s books. Soldis opened another account with the Bank, and again overdrew it,
leading to a dispute about whether the Bank could set off the prior debt, a dispute that
apparently was resolved. In April 2012, Soldis opened yet another account with the
Bank, with an initial deposit of $50, which the Bank applied as an offset to Soldis’s debt.
In July 2012, Soldis sent a letter to USAA, asserting that the matter had already been
settled, and making demands on the Bank, and that it release his debt. This lawsuit
followed.
         The bank filed a one-count complaint for declaratory relief, alleging this essential
dispute: “A dispute and an actual controversy has arisen and now exists between USAA
FSB and Soldis as to the respective rights, duties and obligations of the parties under and
by virtue of the terms, limitations, conditions, and provisions of the Depository


                                                             1
Agreement, in that USAA FSB contends that it is entitled to a setoff due to overdrawn
funds, while Soldis disagrees with this assessment.” Soldis filed an anti-SLAPP motion,
asserting that the Bank’s lawsuit was based on protected activity, his letter to the Bank.
The trial court denied the motion, concluding that the Bank’s suit was not based on
protected activity. We reach the same conclusion, and we affirm.
                                      BACKGROUND
       The Bank’s Complaint
       On October 23, 2012, the Bank filed a complaint for declaratory relief against
Soldis. The complaint was six pages long, and asserted one cause of action, based on
eight essential paragraphs, alleging the following facts:
       “The Depository Agreement
       “4. Soldis and USAA FSB entered into a banking relationship governed by, inter
alia, a Depository Agreement. At all times relevant herein Soldis was aware, or should
have been aware in the normal course, of the terms of the Depository Agreement, his
obligations, and USAA FSB’S rights under the Depository Agreement. . . .
       “5. At all relevant times mentioned herein the Depository Agreement was in full
force and effect. . . .
       “6. Within the Depository Agreement is a section entitled Changes to Agreement.
This section states, in pertinent part, as follows:
       “Bank may change this agreement at any time, whether by adding new terms and
conditions, or deleting or amending existing ones. . . . If you do not agree with a change,
you may close your account. However, if you continue to use your account or keep it
open, you accept and agree to the change. The current version of this Agreement
supersedes all prior versions and contains the terms governing your account.
       “7. Also, within Depository Agreement is a section entitled ‘Charging an
Account.’ This section states, in pertinent part, as follows:
       “Bank may deduct fees, overdrafts, and other amounts you owe to Bank from your
accounts with Bank or from your accounts with Bank’s affiliates. Bank may make such
deductions at any time and without prior notice to you or request from you. If there are


                                               2
not enough funds in the account to cover amounts owed to Bank, Bank may overdraw
your account. You agree to pay immediately all amounts you owe Bank. Bank may use
deposits you or others make to your account, including any Federal or state benefit
payments that you choose to deposit in any account (including direct deposit of Social
Security benefits) to pay fees, overdrafts and other amounts you owe Bank. You
understand and agree that if you do not want your benefits applied in this you may
change your direct deposit instructions to the benefits payor at any time. This provision
does not apply to any consumer credit accessed by a credit card. (Emphasis added.)
       “8. Still further within the Depository Agreement it states, in relevant part, as
follows:
       “Overdrafts and insufficient Fund Fees
       “When you do not have enough available funds in your account to cover a check
or other item . . . Bank considers the item an insufficient fund item. Bank may, without
notice to you and in it [sic] sole discretion, either pay such items and overdraw your
account, or decline or return such items unpaid. In either case, Bank may charge for each
insufficient funds item and for each overdraft. . . . [¶] If Bank overdraws your account to
pay an insufficient funds item, you agree to repay Bank immediately, without notice or
demand from Bank. Bank may use subsequent deposits or credits to the account,
including without limitation deposits of government, welfare, retirement, and social
security benefits, to pay any overdraft you owe the bank, to the fullest extent permitted
by law. You understand and agree that if you do not want such benefits applied in this
way, you may change your direct deposit instructions to the benefits payor at any
time. . . . [¶] Bank may cover any over draft by debit to any other checking, savings, or
time deposit account of any account holder without notice to the account holder, but
Bank is not obligated to do so. You agree to pay all costs and expenses, including
attorney’s fees, that Bank incurs in the collection of any overdraft. (Emphasis added.)
       “9. Finally, within the Depository Agreement it states, in relevant part, as follows:




                                             3
       “Setoff and Security Interest
       “You agree that Bank may, without prior notice or demand, apply or setoff the
funds in your account (and accounts you own with others) at any time to pay any debt,
whether direct, or indirect, that you have with Bank, and/or any fees or service charges
owed to Bank. In addition to its rights under the law (called setoff), you grant bank a
security interest in each account to secure such debt; as it may arise. . . . [¶] . . . Bank
may charge any such debt against your account at any time, without regard to the origin
of deposits to the account or beneficial ownership of the funds. (Emphasis added.)
       “The Dispute
       “10. USAA FSB is informed and believes; and on that basis alleges, that Soldis
has had, and still does, maintain various accounts with USAA FSB. One of the accounts
that was previously used by Soldis included a checking account that was opened on or
about December 17, 1998. This account became overdrawn due to the conduct of Soldis.
The negative balance was approximately $4,214.30. Soldis never made any
arrangements to pay off this amount due and owing to USAA FSB.
       “11. Thereafter, pursuant to its rights under the Depository Agreement, in 2012,
USAA FSB partially setoff approximately $50 of the sums Soldis owed to USAA FSB.
Soldis continues to owe USAA FSB on his overdrawn accounts.
       “12. On or about July 5, 2012, Soldis sent a ‘Demand for Payment from USAA
FSB’ to USAA FSB. Within that document Soldis contends—contrary to the Depository
Agreement and controlling law—that USAA FSB did not, and does not, have the
authority to setoff the sums as it did from one of his accounts with USAA FSB. He
thereafter demands various sums from USAA FSB.”
       The Anti-SLAPP Motion
       On February 15, 2013, Soldis filed a demurrer to the complaint. And on
March 11, he filed the motion pertinent here: a special motion to strike pursuant to Code
of Civil Procedure section 425.16 (SLAPP or anti-SLAPP). Both the demurrer and
SLAPP motion were set for hearing on April 10.



                                              4
       The SLAPP motion was accompanied by a lengthy memorandum of points and
authorities and a declaration of Soldis. Soldis’s declaration attached six exhibits
referenced in his declaration, setting forth the history of his relationship with the Bank, as
seen by him. Thus Soldis testified as follows:
       “2. On or about July 5, 2012, I sent a ‘Demand for payment from USAA FSB’ to
USAA FSB.
       “3. My demand letter was, on its face, a communication preparatory to or in
anticipation of bringing a legal action. The July 5, 2012 demand letter specifically recites
the history of my alleged debt to USAA, explains that the matter was resolved in 2003
through a lawsuit and settlement with USAA, and states that unless USAA walks away
from its collection efforts and acknowledges the prior settlement, I would file a small
claims action. Attached to the July 5, 2012 letter was a draft copy of this complaint.
Attached hereto, and incorporated herein Exhibit A is a true and correct copy of my
demand letter and the incorporated, draft complaint.
       “4. It is my belief, as set forth below, and in my demand letter, that USAA is
simply attempting to reassert a debt it walked away from over ten years ago. The
following traced the history between me and USAA:
       “5. On November 22, 2002, I filed a small claims action in the Sonoma County
Superior Court, entitled Soldis v. USAA Mortgage, designated by case no MSC
163078. . . .
        “6. Over a period of many months (perhaps over a year) prior to my filing MSC
163078, counsel for USAA and I had been exchanging communications in an attempt to
negotiate the settlement of what USAA alleged was a debt I owed USAA in the amount
of $4,214.30 due an improper failure by USAA to properly credit payments on a
condominium . . . I had financed through USAA.
       “7. On January 2, 2003, USAA, through its counsel, proposed settlement terms,
pursuant to which for a payment of $5,000 (modified to $5,300) to me, from USAA, I
would file a request for dismissal with prejudice of MSC 163078. This settlement was
executed on January 3, 2003. . . .


                                              5
       “8. On January 13, 2003, USAA remitted payment to me. . . .
       “9. On January 15, 2003, MCV 163078 was dismissed with prejudice. . . .
       “10. My banking relationship with USAA dates back to sometime around 1988,
when I financed the condominium I purchased in Sebastopol. In order to facilitate
automatic payments, I opened a checking and savings account, through which I
understood that as long as I kept my accounts adequately funded, USAA would use my
deposits to make automatic transfers to make interest and principal payments on his
USAA mortgage.
       “11. During the first nine months of the mortgage loan’s existence, I made regular
deposits into the USAA account. However, USAA apparently lost several deposits—
later discovered and admitted to—and erroneously charged my mortgage account with
late notices and indications that my mortgage was unpaid, despite USAA’s having made
withdrawals from my checking account and credited itself with his payments.
       “12. I had multiple phone conversations with USAA personnel in an effort to
track down payments. USAA consistently advised me not to worry, and confirmed that
monthly mortgage payments had been made. . . .
       “13. Finally, in 2002, despite assurances that my loan was being paid, and regular
deposits and automatic transfers having been made, I was served with a notice of intent to
foreclose, based on an alleged failure to pay. Despite repeated efforts, I was unable to
contact anyone at USAA to resolve this issue, and so, on November 22, 2002, I brought
the small claims lawsuit against USAA and PHH Mortgage for $5,000 . . . .
       “14. Following service of the lawsuit on USAA/PHH, USAA discovered its error
and the Office of the President of USAA contacted me to apologize, telling me, ‘to err is
human and to recover is divine.’ I informed USAA that I was refinancing my loan with
another lender, in order to avoid foreclosure, and that it was going to cost me $7,000 in
refinancing fees. About a week prior to trial, USAA/PHH attorney, Kristina M. Larise,
contacted me and offered to settle for a one-time payment of $5,300.00, but if I refused to
settle USAA would move the case into federal court. . . .



                                             6
       “15. I settled with USAA for a lump sum of $5,300. I asked USAA/PHH to
conduct a final accounting, as neither I nor USAA were able to determine the status of
my account at that point. USAA issued me a refund check, and soon thereafter I closed
all accounts I had with USAA.
       “16. Within around a year of closing my accounts, I opened a new checking
account with USAA—I chose to do this because I appreciated that USAA accounts had a
no-fee ATM policy. There was no problem for over a year, until I opened a new savings
account with USAA. Within days of opening the savings account, USAA seized my
accounts and informed me that I had an outstanding debt of around $4,000 from my prior
checking account(s) dating back to the 2003 settlement of the small claims lawsuit.
       “17. At that time, I threatened to sue, referencing the small claims lawsuit and its
settlement in 2003. USAA’s Assistant Vice President wrote to me on November 1, 2005,
and explained that the reason my assets were seized was that USAA’s records indicated
that USAA had ‘charged off with a $4,214.30 balance on January 17, 2002.’. . .
       “18. The $4,214.30 ‘charge-off’ is the exact same amount alleged as owing in the
Complaint in the instant matter. The date (January 17, 2002) is conspicuously similar to
the date of the Dismissal of MSC-163078, (January 15, 2003) and it is notable that
counsel for USAA dated her Settlement agreement January 2, 2002, rather than 2003.
       “19. To the best of my knowledge, beside the alleged non-payment of my
mortgage, resolved in the 2003 settlement, I have never once been notified of any other
overdraft or other failure to USAA. I never wrote a check on insufficient funds, and
USAA has never informed me of any such overdraft.
       “20. In July, 2012, I contacted Mr. Broker, attorney for USAA, who informed me
that there were no outstanding issues with my accounts. In reliance on this assurance, I
opened a new checking account and deposited $50.00. When, in 2012, USAA once again
attempted to seize moneys from my USAA accounts, I engaged in a series of oral and
written communications with USAA to define and resolve their dispute. Once I became
certain that the basis for USAA’s activities was the alleged $4,214.30 that was settled in
the lawsuit and its resolution in 2003, and unable to resolve the matter with USAA, I


                                             7
prepared my July 5, 2012 demand letter . . . specifically reciting the history of my alleged
debt to USAA, that the matter was resolved in 2003 through a lawsuit and settlement with
USAA, and stating that unless USAA walked away from its collection efforts and
acknowledged the prior settlement, I would file a small claims action.”
       On March 27, the Bank filed its opposition to the SLAPP motion (and opposition
to the demurrer). The Bank’s opposition to the SLAPP motion was accompanied by a
declaration of counsel, which attached as exhibits three documents obtained from
Soldis’s attorney. The Bank’s opposition was also accompanied by the declaration of
Bank employee Susie Donohue, attached to which were five exhibits. The Bank also
filed objections to portions of Soldis’s declaration.
       On April 9, 2013, Soldis filed a reply memorandum and objections to portions of
the Donohue declaration.
       The motion to strike (and the demurrer) came on for hearing on April 10, 2013.
The court heard argument on the anti-SLAPP motion, following which it essentially held
that Soldis’s letter was not the basis of the Bank’s declaratory relief action, concluding as
follows: “This is a long, ongoing dispute back and forth between the parties. It seems to
me that the Bank has appropriately stated a basis for seeking declaratory relief and that
they are not guilty of [the] type of conduct that the special motions to strike were—those
statutes were created to protect from. He sent the letter. And it’s true—so his letter was
a protected activity. But it wasn’t the sending of the letter or to keep him from doing it,
the letter is simply offered as evidence of the fact that they have an unresolved dispute.
That is how the court sees it at this point. So the court will overrule the special motion to
strike and the demurrer as well.”
       On May 13, 2013, the trial court entered its formal order, the substance of which
concluded as follows: “While Soldis’ July 5, 2012 letter was protected activity, the Court
does not find that Soldis has shown that the protected activity was the primary thrust or
gravamen of USAA’s Complaint. The Court is not persuaded by Soldis’ argument that
USAA’s Declaratory Relief Complaint was filed in order to chill Soldis’ free speech
rights or right of petition. Rather, the Court agrees with USAA that USAA seeks to


                                              8
resolve a long-standing dispute between the parties concerning a debt. IT IS
THEREFORE ORDERED that Defendants Special Motion to Strike and Request for
Attorney’s Fees is DENIED.”
       On May 20, Soldis filed his appeal.
                                       DISCUSSION
       The Anti-SLAPP Law
       We recently discussed the SLAPP law and its operation, in Hecimovich v. Encinal
School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 463–464:
       “Subdivision (b)(1) of section 425.16 provides that ‘[a] cause of action against a
person arising from any act of that person in furtherance of the person’s right of petition
or free speech under the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.’ Subdivision (e) of section 425.16 elaborates the four
types of acts within the ambit of a SLAPP, including, as pertinent here, ‘(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.’
       “A two-step process is used for determining whether an action is a SLAPP. First,
the court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity, that is, by demonstrating
that the facts underlying the plaintiff’s complaint fit one of the categories spelled out in
section 425.16, subdivision (e). If the court finds that such a showing has been made, it
must then determine the second step, whether the plaintiff has demonstrated a probability
of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)
       “ ‘The Legislature enacted section 425.16 to prevent and deter “lawsuits [referred
to as SLAPP’s] brought primarily to chill the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).)
Because these meritless lawsuits seek to deplete “the defendant’s energy” and drain “his


                                               9
or her resources” [citation], the Legislature sought “ ‘to prevent SLAPPs by ending them
early and without great cost to the SLAPP target’ ” [citation]. Section 425.16 therefore
establishes a procedure where the trial court evaluates the merits of the lawsuit using a
summary-judgment-like procedure at an early stage of the litigation.’ (Varian Medical
Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
       “Finally, and as subdivision (a) of section 425.16 expressly mandates, the section
‘shall be construed broadly.’
       “With these principles in mind, we turn to a review of the issues before us, a
review that is de novo. (Grewal v. Jammu (2011) 191 Cal.App.4th 977, 988.)”
       The Bank’s Complaint Does Not Arise From Protected Activity
       As indicated above, the trial court concluded that Soldis failed to meet his burden
under the first step of the SLAPP analysis, failing to demonstrate that the Bank’s
complaint arose from protected activity. Soldis contends this was error, that the actual
controversy of the Bank’s action is based on his demand letter, a demand letter that was
in anticipation of litigation and thus protected activity. In claimed support of this
argument, Soldis asserts that “[b]ut for Soldis’ July 5 letter, there would be no actual
controversy” and “[b]ut for Soldis’ pre-litigation activities, [the Bank] could not state a
cause of action for declaratory relief . . . .” Soldis makes much of the fact that the
Bank’s lawsuit was filed shortly after the Bank received his letter. As he puts it at one
point: “Soldis’ demand letter gave notice that he would be bringing a lawsuit unless he
and USAA [FSB] could resolve certain issues. Soldis’ letter was a demand letter and
contained a draft lawsuit for breach of contract against USAA [FSB]. Soldis claimed, in
that letter, that he did not owe any money to USAA and that the alleged debt claimed by
USAA was resolved finally and completely following litigation and settlement in 2003.”
       It is, of course, the law that statements made in the course of judicial proceedings
are protected by the anti-SLAPP statute. (Navellier, supra, 29 Cal.4th at p. 90.) This
includes prelawsuit notices and demands. (See, for example, Comstock v. Aber (2012)
212 Cal.App.4th 931, 944–945 [sexual harassment plaintiff’s prelitigation complaints to
employer’s human resources manager, made to address potential affirmative defense that


                                             10
plaintiff failed to take advantage of employer’s internal remedial procedures, were
protected as statements prior to litigation]; CKE Restaurants, Inc. v. Moore (2008)
159 Cal.App.4th 262, 271 [statements made in Proposition 65 intent-to-sue notice within
protection of SLAPP statute]; Digerati Holdings, LLC v. Young Money Entertainment,
LLC (2011) 194 Cal.App.4th 873, 887 [analyzing attorney demand letter in context of
litigation privilege]; Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35–36 [same].) Thus,
Soldis is correct that his demand letter could be protected activity.
       The issue is whether the Bank’s declaratory relief lawsuit arises from such
protected activity. We conclude it does not.
       To begin with, the fact that the Bank’s lawsuit was filed after Soldis’s letter does
not establish that the lawsuit “arose from” that activity. (City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 77 (City of Cotati); Navellier, supra, 29 Cal.4th at p. 88; see
Personal Court Reporters, Inc. v. Rand (2012) 205 Cal.App.4th 182, 189 [collecting
cases].) As the Supreme Court explained in City of Cotati, supra, at pp. 76-77: “It is
indisputably true, as the trial court observed, that City’s action was filed shortly after
Owners filed their claim in federal court. But 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.’
(ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1002; see also Briggs
[v. Eden Council for Hope and Opportunity (1999) 1106] at p. 1114 [‘arise from’ means
‘based upon’].)”
       In short, it is not enough to show that the action was “triggered by”—or filed in
response to or in retaliation for—a party’s exercise of free speech rights. A cause of
action may be “triggered by” protected activity without necessarily “arising from” that
activity.” (City of Cotati, supra, 29 Cal.4th at pp. 77-78; Episcopal Church Cases (2009)
45 Cal.4th 467, 477.)



                                              11
       As we recently explained in Moriarty v. Laramar (2014) 224 Cal.App.4th 125,
cd133: “In order for a complaint to be within the anti-SLAPP statute, the ‘critical
consideration . . . is whether the cause of action is based on the defendant’s protected free
speech or petitioning activity.’ (Navellier v. Sletten[, supra,] 29 Cal.4th [at p.] 89.) To
make that determination, we look to the ‘principal thrust or gravamen of the plaintiff’s
cause of action.’ (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181,
188; Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279.)”
       The thrust, the gravamen, of the Bank’s lawsuit is the long-simmering dispute
between the parties. While Soldis’s demand letter may be one piece of evidence relevant
to the Bank’s declaratory relief action, it is just that, as accurately described by the trial
court: the letter is “simply . . . evidence of the fact that [the parties] have an unresolved
dispute.” Soldis’s letter is, at most, incidental to the thrust of the Bank’s action—and not
within the SLAPP statute. (See generally Gotterba v. Travolta (2014) 228 Cal.App.4th
35 [denial of anti-SLAPP motion, concluding that Gotterba’s complaint was not “based
upon . . . sabre-rattling demand letters”].)
       Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154 is instructive. There, a
landlord served tenants a notice under the Ellis Act (Gov. Code, § 7060 et seq.) that the
landlord intended to withdraw rental units, including that occupied by the tenants, from
the market. Following receipt of the notice, the tenants there, like the Bank here, filed a
declaratory relief action seeking declaration of their rights under the Ellis Act. The
landlords filed a SLAPP motion, which the trial court granted. The Court of Appeal
reversed, in language strikingly applicable here: “Defendants have fallen victim to the
logical fallacy post hoc ergo propter hoc—because the notices preceded plaintiffs’
complaint the notices must have caused plaintiffs’ complaint. The filing and service of
the notices may have triggered plaintiffs’ complaint and the notices may be evidence in
support of plaintiffs’ complaint, but they were not the cause of plaintiffs’ complaint.
Clearly, the cause of plaintiffs’ complaint was defendants’ allegedly wrongful reliance on
the Ellis Act as their authority for terminating plaintiffs’ tenancy. (Marlin v. Aimco
Venezia, LLC, supra, 154 Cal.App.4th at p. 160.)


                                               12
        City of Alhambra v. D’Ausilio (2011) 193 Cal.App.4th 1301 is similar. There,
again like the Bank here, plaintiff filed an action for declaratory relief to obtain a
determination that defendant’s conduct (involvement in protests) was a breach of a
settlement agreement. The trial court denied the SLAPP motion. The Court of Appeal
affirmed, holding that, despite that the conduct in question—exercise of constitutional
right of free speech— was protected activity, the City’s action did not arise from that
exercise, but rather from a controversy between the parties as to the scope of the
settlement agreement—in essence, a contract dispute. (Id. at p. 1308.)
        In Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, a
seller of real property brought an action against the buyer, the city, and city officials for
breach of contract, fraud, and related causes of action, in which some of the actions
complained of related to defendants’ conduct in obtaining and issuing permits. The trial
court granted the anti-SLAPP motion. The Court of Appeal reversed, holding that the
thrust of the action did not “arise from” these activities. (Id. at pp. 808-809.) Likewise
here.
        The Bank’s complaint describes the principal thrust, the gravamen, of its action
here. And it is far broader than arising from Soldis’s demand letter. As quoted above, it
is as follows: “A dispute and an actual controversy has arisen and now exists between
USAA FSB and Soldis as to the respective rights, duties and obligations of the parties
under and by virtue of the terms, limitations, conditions, and provisions of the Depository
Agreement, in that USAA FSB contends that it is entitled to a setoff due to overdrawn
funds, while Soldis disagrees with this assessment.” That complaint is not within the
anti-SLAPP statute. Soldis’s motion was properly denied.
        One last point. Soldis contends that one isolated comment by the trial court in the
order denying his SLAPP motion is a basis for reversal. That comment was this: “The
Court is not persuaded by Soldis’ argument that USAA [FSB’s] Declaratory Relief
Complaint was filed in order to chill Soldis’ free speech rights or right of petition.”
Pointing to this language, Soldis contends that “[t]he Order denying Soldis’ anti-SLAPP



                                              13
motion is expressly predicated on a finding that the Complaint was not filed with the
intent to chill Soldis’ ” constitutional rights.
       While Soldis’s assertion may not be an accurate description of the record, Soldis is
correct that the trial court’s comment was misguided, as a defendant in a SLAPP motion
need not show that the lawsuit was brought with the subjective intent to “chill.”
(Equillon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 58.)
Regardless, the statement can have no bearing here, where our review is de novo.
                                        DISPOSITION
       The order denying the anti-SLAPP motion is affirmed.

                                                    _________________________
                                                    Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Brick, J.*




*
 Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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