Filed 8/26/15 Saulie v. Paradise Restaurant & Bar CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


HELEN SAULIE,                                                        B252782

         Plaintiff, Cross-Defendant and                              (Los Angeles County
         Appellant,                                                  Super. Ct. No. BC502860)

         v.

PARADISE RESTAURANT & BAR, INC.
et al.,

         Defendants, Cross-Complainants
         and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph
Kalin, Judge. Affirmed in part, reversed in part, and remanded.
         Fink & Steinberg and Olaf J. Muller for Plaintiff, Cross-Defendant and Appellant.
         Conforti & Carras and Michael J. Carras for Defendant, Cross-Complainant and
Respondent Maria Bizakis.




                                      ____________________________
       Following the termination of her employment with Paradise Restaurant & Bar,
Inc. (Paradise), appellant Helen Saulie filed a civil action against Paradise and her former
manager at Paradise, respondent Maria Bizakis. Saulie alleged in her complaint that
Bizakis discriminated against and harassed her on the basis of her age in violation of the
Fair Employment and Housing Act (Gov. Code § 12900 et seq.) (FEHA) and caused
Paradise to wrongfully discharge her. Bizakis thereafter filed a cross-complaint against
Saulie, alleging causes of action for fraud, harassment, defamation, intentional and
negligent infliction of emotional distress, and “frivolous lawsuit.” In response to the
cross-complaint, Saulie brought a special motion to strike pursuant to Code of Civil
Procedure section 425.16.1 The trial court granted the special motion to strike as to the
cause of action for “frivolous lawsuit” and as to certain allegations in the cause of action
for fraud, but denied the motion in all other respects. Saulie now appeals the trial court’s
order partially denying her motion. We affirm in part, reverse in part, and remand the
matter to the trial court for further proceedings consistent with this opinion.

           FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I.     Saulie’s Complaint Against Paradise and Bizakis
       On March 14, 2013, following the termination of her employment, Saulie filed a
FEHA-based civil action against Paradise and Bizakis. The complaint asserted causes
of action for age discrimination, age harassment, failure to prevent harassment and
discrimination, retaliation, wrongful termination, breach of contract, breach of the
implied covenant of good faith and fair dealing, intentional infliction of emotional
distress, and violation of Business and Professions Code section 17200.
       Saulie alleges that she was employed by Paradise for 14 years as a waitress and
then a manager and was an exemplary employee throughout her tenure. In 2007,
Paradise was purchased by Bizakis’s adult children, who installed Bizakis as the


1     Unless otherwise stated, all further statutory references are to the Code of Civil
Procedure.


                                              2
restaurant’s new general manager notwithstanding her lack of any experience in business
or restaurant management. According to the complaint, Bizakis implemented a number
of unlawful cost-cutting measures, including refusing to make necessary repairs to the
restaurant in violation of health code regulations, ordering staff to re-serve uneaten bread
rolls to customers, and forbidding employees from taking restroom breaks. Bizakis also
engaged in a campaign of age-based discrimination and harassment against Saulie.
Among other acts, Bizakis directed the restaurant hostesses not to seat customers in
Saulie’s designated section because of her age, reduced Saulie’s work hours and
reassigned her to the least profitable shifts, and regularly made disparaging remarks about
Saulie’s age to her customers and coworkers. After Saulie complained to Paradise’s
owner about the discrimination and harassment, Bizakis retaliated against Saulie by
issuing her a series of written reprimands based on false allegations of workplace
misconduct. In 2012, Paradise terminated Saulie’s employment because of her age and in
retaliation for her protected complaints. When health inspectors discovered a rat in the
restaurant a few days after Saulie’s termination, Bizakis blamed the incident on Saulie,
falsely telling staff that Saulie had broken into the restaurant and surreptitiously planted
the rat.

II.     Bizakis’s Cross-Complaint Against Saulie
        On April 24, 2013, Paradise and Bizakis each filed, in propria persona, a cross-
complaint against Saulie.2 Bizakis’s cross-complaint asserted the following six causes of
action: (1) fraud, (2) harassment, (3) defamation, (4) intentional infliction of emotional
distress, (5) negligent infliction of emotional distress, and (6) “frivolous lawsuit.” It also



2       Because Paradise was a corporate defendant required to be represented by counsel
in the underlying action, the trial court set an order to show cause as to whether the cross-
complaint filed by Paradise should be stricken. Paradise thereafter filed a first amended
cross-complaint through counsel and Saulie filed a special motion to strike Paradise’s
first amended cross-complaint. The trial court has not ruled on that motion, however,
and Paradise’s first amended cross-complaint is not at issue in this appeal.


                                              3
included 22 general allegations, which were expressly incorporated by reference into
each cause of action in the cross-complaint.
       As set forth in the general allegations, Saulie had “a rude, harassing and
demeaning attitude towards . . . Bizakis and her family members” during her employment
at Paradise. Saulie “did not like the new owner or . . . Bizakis” and “wanted to quit or get
fired in order to get unemployment.” Saulie “told several co[-]workers, managers and
customers” that Bizakis “was inept, was re-using food, [was] ordering workers to serve
re-used bread[,] . . . was using improper heating methods for the food[,] . . . was cheap,
rude and was allowing the business to falter[,] . . . [and] was not allowing for any repairs
or maintenance to keep the restaurant in a sanitary safe condition.” Saulie also “spread
lies and misinformation” about Bizakis, including “telling customers, co-workers and
manage[rs] that . . . Bizakis said she was too old to work at Paradise[,] . . . too
inexperienced and lacked the skills to perform her duties.” Saulie further “made false
complaints to management about . . . Bizakis,” and “engaged in a misguided attempt to
ruin, harass and intimidate [her].” Saulie “spoke unfavorably about Bizakis to customers
and told them Bizakis was wicked and had a vendetta against her.”
       As further set forth in the general allegations, Saulie engaged in many other acts of
workplace misconduct during her employment at Paradise. Saulie “would constantly talk
to other employees about her drinking problem[,] . . . [and] would arrive at work every
day with a bottle that had the contents hidden[,]” resulting in “several complaints of her
smelling like alcohol from the staff and . . . customers.” Saulie also “would convert,
misappropriate, steal and embezzle funds from Paradise . . . [by] convert[ing] the money
directed to food into her own personal tips.” Paradise “received numerous complaints
about Saulie’s service from customers and coworkers,” including complaints about
“wrong food and drink orders, poor service, poor attitude, [and] long waiting periods.”
Paradise also warned Saulie about “making inappropriate jokes and sexual comments” to
customers and coworkers. On numerous occasions, Saulie “harassed the customers by
demanding that they sit in her section,” and took “tables, customers and clients away
from other servers.” Saulie’s coworkers “felt harassed, intimidated, and manipulated by

                                               4
her as she attempted to garner sympathy by stating ‘Maria doesn’t like me’ and ‘they
don’t like me,’” which “laid the foundation for her future fraudulent claim of
harassment.” Saulie “would tell customers and employees that she was protected
under age discrimination laws . . . and that she could do whatever she wanted to do.” In
addition, Saulie “would tell employees and customers that Paradise was going under, that
new management was crooked, [and] that the new management was reusing food, did not
have proper heating, [and] did not have proper sanitary practices.” Saulie “even placed a
rat in the building and called the health department anonymously stating she dined in
Paradise and [became] ‘ill.’”
       Paragraph 19 of the cross-complaint alleged that it was Paradise’s “understanding
and belief that Saulie has intentionally and maliciously taken the actions [and] engaged
in the misconduct set forth herein in an effort to harm and interfere with Paradise[’s]
business, their employees and clients, and to wrongfully attempt to cause [P]aradise
to lose such customers and clients.” Paragraph 20 further alleged that it was Paradise’s
“understanding and belief that Saulie has intentionally and maliciously taken the actions
and engaged in the misconduct set forth herein in an effort to harm Paradise[’s] good
name and business reputation and to interfere with Paradise[’s] customers and employees
so that Paradise would have to incur substantial attorney[’s] fees and cost[s] to litigate
this matter.” Paragraph 21 alleged that Saulie “filed this complaint with no factual basis
in order to blackmail, extort, threaten, harass, intimidate and defame Paradise,” and that
“[t]his action has harmed Paradise financially and has harmed the great reputation the
business has.”
       In addition to incorporating the general allegations, the cause of action for fraud
added allegations that Saulie “engaged in repeated lies about . . . Bizakis to employees,
customers and health agencies in a pattern of conduct over the months,” and that Saulie
“filed this litigation with false statements intentionally and knowingly [sic] that the basis
for the litigation [was] in fact false and had no merit.” The cause of action for “frivolous
lawsuit” likewise added allegations that the civil action filed by Saulie is “frivolous” and
“fraudulent,” and that Saulie and her attorneys “know in fact that the lawsuit is false and

                                              5
has no merit, yet filed it anyway, in order to blackmail, intimidate and harass . . .
Bizakis.” The remaining causes of action for harassment, defamation, and intentional
and negligent infliction of emotional distress incorporated the general allegations as well
as the specific allegations supporting the fraud cause of action, but did not allege any
other wrongful conduct by Saulie.

III.   Saulie’s Special Motion to Strike Bizakis’s Cross-Complaint
       On May 9, 2013, Saulie filed a special motion to strike Bizakis’s cross-complaint
pursuant to section 425.16. In her motion, Saulie argued that each cause of action in the
cross-complaint arose from constitutionally protected activity because it was based on
her conduct in preparing for and filing the underlying lawsuit. Saulie also asserted
that Bizakis could not establish a probability of prevailing on the merits of the cross-
complaint because each claim was barred by the litigation privilege of Civil Code section
47. Bizakis did not file an opposition to the motion.
       On October 2, 2013, the trial court issued an order granting, in part, and denying,
in part, Saulie’s special motion to strike. The court granted the motion to strike as to the
cause of action for “frivolous lawsuit.” The court also granted the motion to strike as to
certain allegations in the cause of action for fraud. Specifically, the court struck the term
“health agencies” from the allegation that Saulie “engaged in repeated lies about Maria
Bizakis to employees, customers, and health agencies in a pattern of conduct over the
months.” The court also struck the allegation that Saulie “filed this litigation with false
statements intentionally and knowingly [sic] that the basis for the litigation [was] in fact
false and had no merit.” The court denied the special motion to strike in all other
respects. On November 25, 2013, Saulie filed a timely notice of appeal from the order
partially denying her special motion to strike.3



3      In its October 2, 2013 order, the trial court also ruled on a demurrer that Saulie
had filed to Bizakis’s cross-complaint. The court sustained the demurrer, with leave
to amend, as to the causes of action for fraud, harassment, and negligent infliction of
emotional distress. The court overruled the demurrer as to the causes of action for

                                              6
                                       DISCUSSION
I.     Standard Of Review
       Section 425.16, often referred to as the anti-SLAPP statute,4 provides, in pertinent
part, 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 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).)
Section 425.16 must be “construed broadly” to effectuate the statute’s purpose, which
is to encourage participation in matters of public significance and to ensure that such
participation is not chilled through an abuse of the judicial process. (§ 425.16, subd. (a).)
       Resolution of a section 425.16 special motion to strike requires a two-step process.
The moving party first must make a threshold showing that the challenged cause of action
arises from constitutionally protected activity. (Rusheen v. Cohen (2006) 37 Cal.4th
1048, 1056; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
If the moving party satisfies this prong, then the burden shifts to the opposing party to
demonstrate a probability of prevailing on the merits of the claim. (Rusheen v. Cohen,
supra, at p. 1056; Equilon Enterprises v. Consumer Cause, Inc., supra, at p. 67.)5 We
review the trial court’s ruling de novo, conducting an independent review of the entire
record. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325; Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)




defamation and intentional infliction of emotional distress. On October 22, 2013, prior
to Saulie’s filing of this appeal, Bizakis filed a first amended cross-complaint.
4     SLAPP is an acronym for “Strategic Lawsuit Against Public Participation.”
(Jarrow Formulas, Inc., v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
5     Bizakis filed no opposition to the special motion to strike in the trial court;
accordingly, the record contains no showing on the second prong.


                                               7
II.    Arising From Constitutionally Protected Activity
       A cause of action arises from protected activity within the meaning of section
425.16 if the conduct of the defendant on which the cause of action is based was an act in
furtherance of the defendant’s right of petition or free speech. (City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 78 [“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”]; Navellier v. Sletten
(2002) 29 Cal.4th 82, 89 [“critical consideration is whether the cause of action is based
on the defendant’s protected free speech or petitioning activity”].) Section 425.16,
describes four categories of conduct that constitute protected activity: “(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; (4) or 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).)
       When a cause of action contains allegations of both protected and unprotected
activity, it is considered a mixed cause of action. In applying section 425.16 to mixed
causes of action, “‘it is the principal thrust or gravamen of the . . . cause of action that
determines whether the anti-SLAPP statute applies.’” (PrediWave Corp. v. Simpson
Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1219; see also Fox Searchlight
Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308 [a party “cannot frustrate the
purposes of the SLAPP statute through a pleading tactic of combining allegations of
protected and nonprotected activity under the label of one ‘cause of action’”].) “[W]hen
allegations of nonprotected activity are incidental or collateral to a . . . claim challenging
primarily the exercise of the rights of free speech or petition, they may be disregarded in
determining whether the cause of action arises from protected activity. Conversely, if the

                                               8
allegations of protected activity are only incidental to a cause of action based essentially
on nonprotected activity, the mere mention of the protected activity does not subject the
cause of action to an anti-SLAPP motion.” (Scott v. Metabolife Internat., Inc. (2004) 115
Cal.App.4th 404, 414.) Therefore, a “cause of action is vulnerable to a special motion to
strike under the anti-SLAPP statute only if the protected conduct forms a substantial part
of the factual basis for the claim.” (A.F. Brown Electrical Contractor, Inc. v. Rhino
Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1125.)

III.   The Gravamen of the Challenged Cross-Claims Is Not Protected Activity
       On appeal, Saulie argues that the trial court erred in partially denying her special
motion to strike because she satisfied her threshold burden of showing that each cause of
action in Bizakis’s cross-complaint arises from constitutionally protected activity. In
particular, Saulie asserts that each of the challenged cross-claims is subject to a special
motion to strike under section 425.16, subdivisions (e)(1) and (e)(2) because it is based
on Saulie’s petitioning activity in preparing for and filing her underlying FEHA lawsuit.6
       California courts “have adopted a fairly expansive view of what constitutes
litigation-related activities within the scope of section 425.16.” (Kashian v. Harriman
(2002) 98 Cal.App.4th 892, 908.) “[S]tatements, writings and pleadings in connection
with civil litigation are covered by the anti-SLAPP statute, and that statute does not
require any showing that the litigated matter concerns a matter of public interest.
[Citations.]” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.) In general, “a statement
is ‘in connection with’ litigation under section 425.16 . . . if it relates to the substantive
issues in the litigation and is directed to persons having some interest in the litigation.”
(Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266.) Additionally, statements


6       Saulie challenges the trial court’s ruling as to five of the six causes of action in
Bizakis’s cross-complaint: (1) fraud, (2) harassment, (3) defamation, (4) intentional
infliction of emotional distress, and (5) negligent infliction of emotional distress. The
sixth cause of action for “frivolous lawsuit” was stricken in its entirety by the trial court
in ruling on the special motion to strike and is not at issue in this appeal.


                                                9
made in preparation for or in anticipation of bringing an action that is contemplated in
good faith and under serious consideration fall within the ambit of section 425.16.
(Flatley v. Mauro, supra, 39 Cal.4th at p. 322, fn. 11 [“‘“[c]ommunications preparatory
or in anticipation of bringing an action or other official proceeding”’ are protected by
section 425.16”]; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th
1106, 1115 [“‘[j]ust as communications preparatory to or in anticipation of the bringing
of an action or other official proceeding are within the protection of the litigation
privilege[,] . . . such statements are equally entitled to the benefits of section 425.16’”].)
“Accordingly, although litigation may not have commenced, if a statement ‘concern[s]
the subject of the dispute’ and is made ‘in anticipation of litigation “contemplated in good
faith and under serious consideration”’ [citations] then the statement may be petitioning
activity protected by section 425.16.” (Neville v. Chudacoff, supra, at p. 1268.)
       Saulie contends that the gravamen of Bizakis’s cross-complaint impermissibly
targets her petitioning activity because it is directly premised on communicative acts
taken by Saulie in connection with bringing the underlying lawsuit. In support of this
claim, Saulie points to the following general allegations in the cross-complaint, which
were incorporated by reference into each cause of action: (1) Saulie “attempted to garner
sympathy by stating ‘Maria doesn’t like me’ and ‘they don’t like me,’” which “laid the
foundation for her future fraudulent claim of harassment;” (2) Saulie “has intentionally
and maliciously taken the actions and engaged in the misconduct set forth herein in an
effort to harm Paradise[’s] good name and business reputation and to interfere with
Paradise[’s] customers and employees so that Paradise would have to incur substantial
attorney[’s] fees and cost[s] to litigate this matter;” and (3) Saulie “filed this complaint
with no factual basis in order to blackmail, extort, threaten, harass, intimidate and defame
Paradise.” Saulie also points to the following allegation in the fraud cause of action,
which likewise was incorporated by reference into the other causes of action alleged:




                                              10
“Saulie filed this litigation with false statements intentionally and knowingly [sic] that the
basis for the litigation [was] in fact false and had no merit.”7
       Based on the above-referenced allegations, Saulie argues that each of the five
challenged cross-claims is predicated on her actions in filing the underlying FEHA
lawsuit because the cross-complaint expressly refers to the lawsuit and the allegations
therein as being “false,” “fraudulent,” and filed with the intent to “harass” and “defame”
Paradise. Saulie also asserts that the general theory underlying each cross-claim is that
Saulie mistreated Bizakis and engaged in all of the other workplace misconduct alleged
in the cross-complaint specifically so that she could sue Paradise and Bizakis once her
employment was terminated. According to Saulie, because the cross-complaint alleges
that these various acts of misconduct were part of a scheme by Saulie to get fired and
then file a FEHA lawsuit, such actions must have been in taken in anticipation of
litigation that was contemplated in good faith and under serious consideration. Saulie
thus contends that each of the cross-claims is substantially based on her petitioning
activity within the protection of section 425.16.
       As this court has explained, however, “[w]hen evaluating whether the [moving
party] has carried its burden under the first prong of the anti-SLAPP statute, ‘courts must
be careful to distinguish allegations of conduct on which liability is to be based from
allegations of motives for such conduct. “[C]auses of action do not arise from motives;
they arise from acts.” [Citation.]’ [Citation.] ‘“The court reviews the parties’ pleadings,



7        In her appellate brief, Saulie also relies on the specific allegations in the cause
of action for “frivolous lawsuit” to support her argument that all of the other causes of
action in the cross-complaint are premised on Saulie’s protected activity. Those specific
allegations are that Saulie filed a “frivolous” and “fraudulent” lawsuit against Bizakis and
that Saulie and her attorneys “know in fact that the lawsuit is false and has no merit, yet
filed it anyway, in order to blackmail, intimidate and harass . . . Bizakis.” However, the
trial court granted Saulie’s special motion to strike as to the “frivolous lawsuit” cause of
action. Accordingly, those stricken allegations are not relevant to our determination of
whether the remaining causes of action at issue in this appeal arise from constitutionally
protected activity.


                                              11
declarations and other supporting documents to determine what conduct is actually being
challenged, not to determine whether the conduct is actionable.” [Citation.]’ [Citation.]”
(Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1520.) Moreover,
in assessing whether a cause of action arises from protected activity, the court must
“‘“‘examine the principal thrust or gravamen of [the] cause of action’ . . . by identifying
‘[t]he allegedly wrongful and injury-producing conduct … that provides the foundation
for the claim.’ [Citation.] If the core injury-producing conduct upon which the . . . claim
is premised does not rest on protected speech or petitioning activity, collateral or
incidental allusions to protected activity will not trigger application of the anti-SLAPP
statute. [Citation.]” [Citation.]’ [Citation.]” (Ibid.)
       Here, the principal thrust or gravamen of each challenged cross-claim is that
Saulie was an insubordinate employee who engaged in numerous acts of workplace
misconduct during her employment at Paradise. As alleged in the cross-complaint, much
of Saulie’s misconduct was directed at Bizakis and caused Bizakis harm. Specifically,
Saulie defrauded, harassed, and defamed Bizakis and caused Bizakis to suffer emotional
distress by falsely telling customers, coworkers, and managers at Paradise that Bizakis
was incompetent in her job, was failing to properly manage and maintain the restaurant,
and was discriminating against Saulie based on her age. In addition, Saulie allegedly
engaged in other instances of misconduct that caused Paradise harm. Among other acts,
Saulie drank alcohol on the job, harassed customers and coworkers, stole money from the
business, and planted a rat in the restaurant for health inspectors to find. As alleged in
the cross-complaint, all of these acts of misconduct occurred before Saulie filed her
FEHA lawsuit, and with the possible exception of the alleged rat-planting incident,
before her employment was terminated. While the cross-complaint does include some
allegations that are directed at Saulie’s actions in filing the underlying suit, those
allegations are collateral to the substance of the challenged claims. The alleged injury-
producing conduct that forms the basis of these claims is not Saulie’s protected activity in
filing or maintaining a lawsuit, but rather her non-protected activity in engaging in work-
related misconduct as a Paradise employee.

                                              12
       Saulie nevertheless contends that the cross-complaint’s allegations of wrongful
conduct against Bizakis are directly premised on Saulie’s protected activity in filing and
serving her FEHA complaint. In particular, Saulie claims that, based on the allegations in
the cross-complaint, the specific manner in which she “told” Paradise’s customers and
employees the purportedly fraudulent, harassing, and defamatory statements about
Bizakis was by publicly filing a FEHA complaint that included those statements as
factual allegations. This is not a reasonable reading of Bizakis’s cross-complaint.
Contrary to Saulie’s claim, the cross-complaint does not expressly allege that when
Saulie made false and injurious statements about Bizakis to customers and employees,
she did so by filing a civil complaint. Rather, the cross-complaint alleges that Saulie had
a “harassing and demeaning attitude toward . . . Bizakis” from the time new ownership
took over Paradise, and that Saulie “told several co[-]workers, managers, and customers”
that Bizakis was mismanaging the restaurant and treating Saulie in a discriminatory
manner. When the allegations in the cross-complaint are read as a whole and in context,
the only reasonable interpretation is that Saulie made these alleged statements
to Paradise’s customers and employees over a period of time while Saulie was still
employed by Paradise and before she had filed the underlying FEHA suit.
       We likewise reject Saulie’s argument that, based on the allegations in the cross-
complaint, her acts of workplace misconduct were committed in anticipation of litigation
contemplated in good faith and under serious consideration. There is no indication in the
record that, at the time Saulie engaged in any of these alleged acts, including making
false complaints to management at Paradise that Bizakis was discriminating against her,
Saulie had retained legal counsel, sent a demand letter, filed an administrative complaint,
or undertaken any pre-litigation communications with Paradise or Bizakis in connection
with an anticipated lawsuit. It is true, as Saulie asserts, that the cross-complaint expressly
alleges that one of Saulie’s motives for engaging in the misconduct was to “la[y] the
foundation” for her future FEHA claims and to cause Paradise “to incur substantial
attorney[’s] fees and cost[s]” in litigating the underlying lawsuit. However, as discussed,
in determining whether a cause of action is based on protected activity under section

                                             13
425.16, the proper focus is on the specific acts giving rise to the cause of action, and not
on the motive for those acts. (Hunter v. CBS Broadcasting Inc., supra, 221 Cal.App.4th
at p. 1520.) Here, the acts giving rise to the challenged cross-claims are Saulie’s alleged
mistreatment of Bizakis and other acts of workplace misconduct during her employment.
Regardless of Saulie’s personal motives for engaging in such conduct, her alleged actions
in being a poor performing or insubordinate employee do not constitute protected
petitioning activity within the scope of section 425.16.
       In sum, Saulie failed to satisfy her threshold burden of showing that the challenged
causes of action arise from an act in furtherance of the right of petition or free speech. In
reaching this conclusion, we express no opinion about the veracity of the allegations in
the cross-complaint or the merits of the claims alleged, including whether the conduct
on which Bizakis is basing her claims is actionable. (Castleman v. Sagaser (2013) 216
Cal.App.4th 481, 493 [courts “do not consider the veracity of respondents’ allegations in
determining whether their claims arise from protected speech or petitioning activity”];
Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1390 [“[i]f the
substance, or gravamen, of the complaint does not challenge the defendant’s acts in
furtherance of the right of free speech or petition, the court does not consider whether
the complaint alleges a cognizable wrong or whether the plaintiff can prove damages”];
Freeman v. Schack (2007) 154 Cal.App.4th 719, 733 [“[m]erits based arguments have
no place in our threshold analysis of whether [challenged] causes of action arise from
protected activity”].) We also express no opinion as to whether Bizakis’s first amended
cross-complaint, which is substantially similar to her original cross-complaint, may be
subject to a demurrer or other motion on the pleadings. We simply hold that each of the
challenged cross-claims is not subject to a special motion to strike under section 425.16
because Saulie failed to establish that they arise from constitutionally protected activity.
       The trial court therefore did not err in denying Saulie’s special motion to strike as
to the causes of action for harassment, defamation, intentional infliction of emotional
distress, and negligent infliction of emotional distress. The trial court did, however, err
in ruling on the cause of action for fraud by striking certain allegations in that cause of

                                              14
action rather than denying the motion to strike as to the entire cause of action. While
“[t]he anti-SLAPP statute authorizes the court to strike a cause of action, . . . it cannot be
used to strike particular allegations within a cause of action.” (A.F. Brown Electrical
Contractor, Inc. v. Rhino Electric Supply, Inc., supra, 137 Cal.App.4th at p. 1124.)8
Accordingly, the proper remedy in this matter is to (1) affirm the trial court’s order as
to the causes of action for harassment, defamation, intentional infliction of emotional
distress, and negligent infliction of emotional distress, (2) reverse the trial court’s order
as to the cause of action for fraud, and (3) remand the matter to the trial court to enter a
new order denying the motion to strike as to the entirety of the fraud cause of action.

                                       DISPOSITION
       The trial court’s order denying Saulie’s special motion to strike as to the causes
of action for harassment, defamation, intentional infliction of emotional distress, and
negligent infliction of emotional distress is affirmed. The trial court’s order striking
certain allegations in the cause of action for fraud is reversed and the matter is remanded
to the trial court with directions to enter a new order denying the special motion to strike
as to the entirety of the cause of action for fraud. Bizakis shall recover her costs on
appeal.


                                                   ZELON, Acting P. J.

We concur:


                                                                  
       SEGAL, J.                                   STROBEL, J.


8       Although respondent suggests that the trial court struck the allegations in reliance
on the analysis suggested in Cho v. Chang (2013) 219 Cal.App.4th 521, there is nothing
in the record that supports that suggestion. Accordingly, we need not reach the question
of when, if at all, that analysis would be appropriate.
       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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