Filed 7/26/13 Lee-Owens v. Goodman CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



MICHELLE LEE-OWENS,

         Plaintiff and Respondent,                                       E056214

v.                                                                       (Super.Ct.No. CIVRS1200203)

ANNE LOUISE GOODMAN,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa,

Judge. Reversed.

         Manahan, Flashman & Brandon, Amanda E. Manahan and Jeffrey S. Flashman for

Defendant and Appellant.

         Lewis & Ham, Yoon O. Ham and Michael R. Lewis for Plaintiff and Respondent.




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                     FACTUAL AND PROCEDURAL HISTORY

       On January 10, 2012, plaintiff and respondent Michelle Lee-Owens (Owens) filed

a complaint for “public disclosure of private facts, intrusion into private affairs,”

defamation and infliction of emotional distress against defendant and appellant Anne

Goodman (Goodman).

       Goodman responded with a special motion to strike, arguing that the action was a

strategic lawsuit against public participation (“SLAPP”) within the meaning of Code of

Civil Procedure section 425.16.1 In the accompanying memorandum of points and

authorities, Goodman contended, “[a]ll relevant facts are taken from Plaintiff‟s

complaint.”

       The trial court denied the anti-SLAPP motion on grounds that section 425.16,

subdivision (b)(2) requires a defendant to submit declarations stating facts upon which

the liability or defense is based, and Goodman did not submit any such declarations with

her motion.

       Goodman appeals, arguing that the anti-SLAPP statute only requires consideration

of pleadings, affidavits and declarations that are submitted, and declarations are not

required when the relevant facts are stated in the complaint. We agree with Goodman

and reverse the trial court‟s decision.




       1 All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.


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                                       DISCUSSION

       A.      STANDARD OF REVIEW2

       In reviewing a decision under section 425.16, we review the trial court‟s decision

de novo, and independently determine whether the parties have met their respective

burdens. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1365-1366.)

       B.      THE TRIAL COURT‟S DECISION

       The trial court‟s minute order states: “Anti-SLAPP motions must be supported

(and opposed) by declarations stating facts upon which the liability or defense is based.

CCP section 425.16(b)(2). Thus, declarations may not be based upon „information and

belief‟ (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497-98 [Evans]), and documents

submitted without the proper foundation are not to be considered. Tuchscher

Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th

1219, 1238 [Tuchscher]. [¶] Here, however, [Goodman] did not provide the requisite

declarations to bring this motion, but instead, counsel for [Goodman] submitted a

declaration reciting her billing rate for purposes of requesting an award of costs and fees

if [Goodman] prevails. Therefore, the motion does not conform with the statutory

scheme for anti-SLAPP actions and is Denied. Cases cited by the moving party are

distinguishable.”




       2   The order is appealable under section 904.1, subdivision (a)(13).


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       C.     THE ANTI-SLAPP STATUTE

       “The anti-SLAPP statute was enacted in 1992 for the purpose of providing an

efficient procedural mechanism to obtain an early and inexpensive dismissal of

nonmeritorious claims „arising from any act‟ of the defendant „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. . . .‟ [Citation.] To achieve this objective, the

Legislature authorized the filing by a defendant of a special motion to strike those claims

within 60 days after service of the complaint. [Citation.] An anti-SLAPP motion

„requires the court to engage in 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. . . . If the court finds that such a showing has been made, it then

determines whether the plaintiff has demonstrated a probability of prevailing on the

claim.‟ [Citation.] The trial court‟s determination of each step is subject to de novo

review on appeal. [Citation.]” (Martinez v. Metabolife Internat., Inc. (2003) 113

Cal.App.4th 181, 186 (Martinez).)

       Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57 (Equilon)

is instructive here. In that case, our Supreme Court decided that a defendant does not

need to demonstrate that the SLAPP suit was brought with the intent to chill the

defendant‟s exercise of constitutional speech or petition rights. In this regard, the court

stated: “Since section 425.16 neither states nor implies an intent-to-chill proof

requirement, for us judicially to impose one, as Equilon urges, would violate the foremost

rule of statutory construction. When interpreting statutes, „we follow the Legislature‟s


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intent, as exhibited by the plain meaning of the actual words of the law. . . . “This court

has no power to rewrite the statute so as to make it conform to a presumed intention

which is not expressed.”‟ [Citation.]” (Id. at p. 59.)

       The principle applies here because section 425.16, subdivision (b)(2) does not

require Goodman to submit anything. It states: “In making its determination, the court

shall consider the pleadings, and supporting and opposing affidavits stating the facts upon

which the liability or defense is based.” The section merely requires the court to consider

the pleadings and supporting or opposing affidavits, which are submitted. It does not

require their submission. It is important to note that this case only concerns the “arising

from” requirement. Thus, Goodman must first demonstrate that the subject cause of

action is in fact one “arising from” Goodman‟s protected speech or petitioning activity.

(§ 425.16, subd. (b).)

       “As courts applying the anti-SLAPP statute have recognized, the arising from

requirement is not always easily met. [Citations.] The only means specified in section

425.16 by which a moving defendant can satisfy the requirement is to demonstrate that

the defendant‟s conduct by which plaintiff claims to have been injured falls within one of

the four categories described in subdivision (e), defining subdivision (b)‟s phrase, „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.‟ [Citation.]” (Equilon, supra,

29 Cal.4th at p. 66.) In summarizing these requirements, Equilon goes on to point out

that once the “arising from” requirement is met, the plaintiff has the opportunity to

demonstrate that it has a probability of prevailing on the claim. (Id. at p. 67.)


                                              5
       The significance here is that our Supreme Court cites section 425.16, subdivision

(b)(2) and then states, “the trial court in making these determinations considers „the

pleadings, and supporting and opposing affidavits stating the facts upon which the

liability or defense is based.‟” (Equilon, supra, 29 Cal.4th at p. 67.)

       In other words, section 425.16, subdivision (b)(2) applies to both determinations

(“liability or defense”). In deciding whether the case arises from protected activity, we

see no reason why the allegations of the complaint alone cannot establish that Goodman‟s

actions were in furtherance of her right of free speech or right to petition.

       However, if this hurdle is overcome and the analysis turns to the issue of whether

Owens can show a probability of success on the merits, affidavits and declarations would

be necessary. The court would therefore have to consider such affidavits and declarations

to make that determination. In making either decision, there is no requirement that the

party submit affidavits or declarations: the trial court merely makes its decision on the

basis of what has been submitted, including the pleadings.

       In other words, “The Anti-SLAPP statute should be interpreted to allow the court

to consider the „pleadings‟ in determining the nature of the ‘cause of action’—i.e.,

whether the Anti-SLAPP statute applies. But affidavits stating evidentiary facts should

be required to oppose the motion (because pleadings are supposed to allege ultimate

facts, not evidentiary facts).” (Weil & Brown, Cal. Practice Guide: Civil Procedure

Before Trial (The Rutter Group 2012) ¶ 7:1021.1, p. 7(II)56.)

       The companion case of City of Cotati v. Cashman (2002) 29 Cal.4th 69 (Cotati)

also rejects imposition of an intent to chill requirement. It emphasizes that the “arising


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from” requirement means 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.

[Citations.]” (Id. at p. 78.)

       It is therefore necessary to consider the allegations of the complaint to determine

whether the “arising from” requirement is met. “[A] defendant in an ordinary private

dispute cannot take advantage of the anti-SLAPP statute simply because the complaint

contains some references to speech or petitioning activity by the defendant. [Citation.]

We conclude it is the principal thrust or gravamen of the plaintiff‟s cause of action that

determines whether the anti-SLAPP statute applies [citation], and when the allegations

referring to arguably protected activity are only incidental to a cause of action based

essentially on nonprotected activity, collateral allusions to protected activity should not

subject the cause of action to the anti-SLAPP statute.” (Martinez, supra, 113

Cal.App.4th at p. 188.)

       The trial court must therefore focus on the allegations of the complaint to make the

“arising from” determination, and we see no reason why it cannot rely solely on those

allegations if they are sufficient to decide the issue. (Cf. Cotati, supra, 29 Cal.4th at p.

79-80 [allegations of the complaint determinative; affidavits essentially irrelevant].)

       As noted above, the trial court relied on Evans, supra, 38 Cal.App.4th at pages

1497 through 1498, and Tuchscher, supra, 106 Cal.App.4th at page 1238. The cited

portions of both cases deal with the second issue presented by an anti-SLAPP motion,

i.e., the probability of success on the merits.




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       In Evans, the issue was whether statements on information and belief are

permissible in declarations intended to establish a probability the plaintiff would prevail

in the action. (Evans, supra, 38 Cal.App.4th at p. 1493.) The court considered whether

the plaintiff made a sufficient prima facie showing that he would prevail at trial. The

court held that this meant that he had to show clear and convincing evidence of

constitutional malice. (Id. at p. 1496.) The court further held that the plaintiff‟s

statement on information and belief was insufficient to show the defendants knew of a

hostile encounter between plaintiff and the defendant. (Id. at pp. 1497-1498.)

       The Evans decision relates to the permissible content of declarations, an issue not

present in this case. No relevant declarations were filed here. Nor does the case stand for

the proposition that declarations must be filed under section 425.16, subdivision (b)(2).

Nor does it suggest that declarations are required when the issue is the applicability of the

initial “arising from” test, rather than the “probability of success” test.

       In the cited portion of Tuchscher, the court was also considering the probability of

success test. (Tuchscher, supra, 106 Cal.App.4th at p. 1235.) It required the presentation

of admissible evidence to support the plaintiff‟s claim that there was a prima facie

showing that it would prevail, and held that admissible evidence did not include

statements on information and belief, citing Evans. (Tuchscher, at pp. 1235-1236.)

Accordingly, Tuchscher cited Evans and other authority to hold that the applicable

inquiry is whether the plaintiff “established with competent and admissible evidence it

has a probability of prevailing on its claims. [Citations.]” (Tuchscher, at p. 1236.)




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       We therefore find that these cases do not deal with the “arising from” test and,

accordingly, they do not provide authority for the proposition that declarations must be

submitted by Goodman in support of her motion. If such declarations are not submitted,

the trial court merely decides if the allegations of the complaint are in themselves

sufficient to demonstrate that the “arising from” test has been met.

       D.     THE COMPLAINT

       The general allegations of the complaint allege that Owens and Goodman both ran

for the Board of Directors of the Lemon Heights Home Owners Association. It states:

“The election was extremely contentious, and was marked by Goodman‟s use of personal

criticism of [Owens] while campaigning door-to-door throughout the community.” The

complaint then alleges that Goodman won the election and, while a Board member,

learned “private information” about Owens and disseminated it to other persons.

       The election was subsequently set aside and a new election was held. The

complaint alleges that Goodman disclosed the private information, during election

canvassing, to homeowners and sent letters to the homeowners that included the

information. Goodman‟s actions were allegedly made with “the intent to harass and

intimidate [Owens] such that she drops her bid for election to the HOA board, and to . . .

damage her reputation so that she could not win any election in this community.”




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       Each of the five alleged causes of action3 incorporates and is based on the

dissemination of Owens‟s private information during the election campaign. Thus, when

we examine the complaint, it is clear that each of the alleged causes of action rests on

statements made by a candidate during election campaigns. In other words, the principal

thrust or gravamen of Owens‟s causes of action concern protected speech on public

issues of concern to the community. (Martinez, supra, 113 Cal.App.4th at p. 188.)

       By simply relying on the complaint itself, Goodman met her burden of

demonstrating that Owens‟s alleged causes of action arose from actions by Goodman in

furtherance of her right to free speech in election campaigning in connection with a

public issue. No more was needed to prove the point, and we find no requirement in

section 425.16, subdivision (b)(2), that declarations or affidavits were required or

necessary to meet the “arose from” requirement.

       “In short, the 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. [Citations.] In the anti-SLAPP

context, 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.] „A

defendant meets this burden by demonstrating that the act underlying the plaintiff‟s cause




       3  The alleged causes of action are: (1) public disclosure of private facts;
(2) intrusion into private affairs; (3) intentional infliction of emotional distress;
(4) negligent infliction of emotional distress and (5) defamation.


                                              10
fits one of the categories spelled out in section 425.16, subdivision (e) . . . .‟ [Citations.]”

(Cotati, supra, 29 Cal.4th at p. 78.)

       The conduct alleged in the complaint fits within section 425.16, subdivision (e)(4)

because it is “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.” Accordingly, the alleged conduct meets the “arising from” test.

       More generally, “Our Constitution protects everyone—even politicians. [Section

425.16] was enacted to discourage the filing of . . . SLAPP suits. Here, we hold the anti-

SLAPP law protects statements made by a candidate for public office and his supporters.”

(Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 946.) As a candidate for office,

Goodman was entitled to the protection of section 425.16. (See, also, Damon v. Ocean

Hills Journalism Club (2000) 85 Cal.App.4th 468, 475 [homeowners association];

Conroy v. Spitzer (1999) 70 Cal.App.4th 1446, 1451 [statements made during political

campaigns]; and Macias v. Hartwell (1997) 55 Cal.App.4th 669, 672 [campaign

statements in union elections].)

       E.     JUDICIAL ADMISSIONS

       Factual statements in pleadings are judicial admissions. “The admission of a fact

in a pleading is conclusive on the pleader. The pleader cannot offer contrary evidence

unless permitted to amend, and a judgment may rest in whole or in part on the admission

without proof of the fact. [Citations.] The trial judge, however, has discretion to relieve

a party from the effects of a judicial admission by permitting amendment of a pleading

(citation), and doubtless the court can look through an admission that seeks to carry out


                                              11
the purposes of a sham or collusive case.” (4 Witkin, Cal. Procedure (5th ed. 2008)

Pleadings, § 454, p. 587.) “Well pleaded allegations in the complaint are binding on the

plaintiff at trial.” (Id. at § 455, p. 587.)

       “Because the pleader‟s judicial admission removes the fact from the issues,

evidence of it is irrelevant, and the adverse party is ordinarily barred from presenting any.

A defendant in a personal injury or wrongful death action sometimes attempts to avoid

the emotional effect of the plaintiff‟s evidence of the circumstances of the accident by

making a judicial admission of liability, so as to limit evidence to the narrow issue of

damages. If the admission is clear and unlimited in scope, and does not deprive the

plaintiff of the legitimate force and effect of material evidence, the court will make it

effective by excluding evidence on the uncontested issue. [Citations.]” (4 Witkin, Cal.

Procedure, supra, Pleadings, § 454, pp. 587.)

       Thus, Goodman would not be able to file a declaration supporting or quoting the

admissions in the complaint, because the allegations of the complaint establish the fact,

and a declaration is not only not required, it is irrelevant. (4 Witkin, Cal. Procedure,

supra, Pleadings, § 454, p. 587.)

       Section 425.16, subdivision (a) requires the statute to be construed broadly. The

trial court erred in construing section 425.16, subdivision (b)(2) narrowly by finding that

the section requires Goodman to submit a declaration in support of her contention that

the causes of action alleged in the complaint were in violation of her free speech rights in

connection with a public issue.




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       F.     OTHER ISSUES

       Having obtained our agreement on the “arising from” issue, Goodman seeks to go

farther by arguing that Owens failed to show a reasonable probability of prevailing on the

complaint. Goodman also raises the privilege defense of Civil Code section 47.

       We agree with Owens that these issues go far beyond the threshold issue decided

by the trial court. They also involve factual matters that have not been decided in the trial

court or briefed in this court. Owens cites Navellier v. Sletten (2002) 29 Cal.4th 82, a

companion case of the Equilon and Cotati cases discussed above.

       In Navellier, our Supreme Court found that the trial court had erred in applying the

“arising from” test and denied the motion. The trial court, and the appellate court, did not

discuss whether the plaintiffs established the probability of prevailing. The Supreme

Court therefore said, “we shall remand the cause to permit the court to address that

question in the first instance. On reconsideration, therefore, the Court of Appeal should

consider whether plaintiffs‟ fraud and contract claims have the minimal merit required to

survive an anti-SLAPP motion.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 95.)

                                      DISPOSITION

       The trial court‟s order of March 26, 2012, is reversed and the case is remanded for

consideration of the question of whether Owens can show a probability that she will

prevail on her claim within the meaning of section 425.16, subdivision (b). The trial

court shall then decide the motion in accordance with section 425.16. Goodman is to

recover costs and attorney fees on appeal in an amount to be set by the trial court.




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(Evans, supra, 38 Cal.App.4th at p. 1500.) Further costs and attorney fees may be

awarded under section 425.16, subdivision (c) to the party who eventually prevails.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                       MILLER
                                                                                      J.


We concur:


RAMIREZ
                              P. J.


McKINSTER
                                 J.




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