Filed 2/26/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
BEL AIR INTERNET, LLC, B270268
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC586145)
v.
ALBERT MORALES et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County. Mel Red Recana, Judge. Reversed with
directions.
Kesluk, Silverstein & Jacob, Douglas N. Silverstein, Mia
Munro and Geoffrey L. Bryan for Defendants and Appellants.
Skiermont Derby, Paul B. Derby, John J. O’Kane IV and
Mane Sardaryan for Plaintiff and Respondent.
________________________________________
This appeal requires us to consider the role of the pleadings
and supporting declarations in deciding a motion to strike under
the anti-SLAPP statute (Code Civ. Proc., § 425.16). 1 Section
425.16 protects the exercise of certain constitutional rights by
permitting a motion to strike when a complaint targets specified
conduct that involves the right to freedom of speech or the right
to petition the government. When a plaintiff’s complaint shows
that a claim arises from communications that are protected
under the statute, must the defendant support a motion to strike
with declarations confirming that his or her actions fall within
one of the categories of protected conduct?
We conclude that, when the complaint itself alleges
protected activity, a moving party may rely on the plaintiff’s
allegations alone in arguing that the plaintiff’s claims arise from
an act “in furtherance of the person’s right of petition or free
speech.” (§ 425.16, subd. (b)(1).) While section 425.16 requires a
court to consider both the “pleadings” and the “supporting and
opposing affidavits stating the facts upon which the liability or
defense is based” (§ 425.16, subd. (b)(2)), it does not require a
moving party to submit declarations confirming the factual basis
for the plaintiff’s claims. Otherwise, a defendant who disputes
the plaintiff’s allegations (as appellants do here) might be
precluded from bringing an anti-SLAPP motion. That would
have the perverse effect of making anti-SLAPP relief unavailable
when a plaintiff alleges a baseless claim, which is precisely the
kind of claim that section 425.16 was intended to address. (See
1Subsequent undesignated statutory references are to the
Code of Civil Procedure. “SLAPP” is an acronym for “[s]trategic
lawsuit against public participation.” (Briggs v. Eden Council for
Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1 (Briggs).)
2
Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral) [the anti-
SLAPP statute “provides a procedure for weeding out, at an early
stage, meritless claims arising from protected activity”].)
Here, plaintiff and respondent Bel Air Internet, LLC
(Bel Air) alleges that defendants and appellants Albert Morales
and Flavio Delabra (collectively, Appellants) encouraged fellow
employees of Bel Air to quit and sue the company for alleged
employment violations rather than sign a release of such claims
that Bel Air requested. Consistent with several decisions by our
Supreme Court, we conclude that such prelitigation conduct
encouraging third parties to sue is protected petitioning activity
under section 425.16, subdivision (e). In bringing a motion to
strike under that section, Appellants could rely on Bel Air’s
allegations that they urged other employees to quit and sue, even
though Appellants denied engaging in this conduct. We therefore
reverse the trial court’s order denying Appellants’ motion to
strike.
BACKGROUND
Bel Air is a DirecTV service provider. Until June 8, 2015,
Appellants worked at Bel Air as field installers. Appellants left
the company under circumstances that Bel Air describes as a
voluntary departure and Appellants characterize as wrongful
termination. As shown below, the parties disagree on most other
critical facts as well.
1. Bel Air’s Complaint
Bel Air filed its complaint on June 25, 2015. The complaint
alleges causes of action for: (1) intentional interference with
contractual relations; (2) breach of contract; (3) breach of the
implied covenant of good faith and fair dealing; and
(4) conversion (against Morales only). The first three causes of
3
action (the Contract Claims) are based upon two different
theories of interference and breach.
First, Bel Air claims that Appellants interfered with its
contractual relationship with other Bel Air employees by
encouraging them to leave their jobs and sue Bel Air. Bel Air’s
intentional interference claim alleges that Appellants “advised,
counseled, encouraged and sought to persuade various BEL AIR
employees to end their employment by BEL AIR, and on
information and belief, to refuse to sign certain employment-
related documents, create the false appearance of being
terminated by BEL AIR, and pursue employment-related
lawsuits against BEL AIR, possibly at the encouragement or
direction of their own lawyers.” Bel Air’s second and third causes
of action allege more succinctly that Appellants acted “in
contravention of their duties of care and loyalty” by “seeking to
encourage other BEL AIR employees to quit and sue BEL AIR,
and thereby disrupt BEL AIR’s business operations.”
Second, Bel Air’s second and third causes of action allege
that Appellants breached their contractual duties to Bel Air by
“not performing employment services for BEL AIR from June 8,
2015, the date on which they left work without explanation and
did not return, through the last date on which [Appellants] were
paid by BEL AIR.”
2. The Motion to Strike
a. Appellants’ motion
On August 24, 2015, Appellants filed a motion to strike
under section 425.16, seeking dismissal of Bel Air’s first three
causes of action. Appellants supported their motion with their
own declarations and a declaration from another Bel Air field
installer, Andrew Figueroa.
4
According to Appellants, until about June 1, 2015, Bel Air
paid them and other Bel Air installers as “exempt” employees
under the applicable employment statutes and regulations.
Appellants were not paid for hours worked above eight hours per
day or 40 hours per week, and were not informed of their right to
meal and rest breaks or compensated for missed breaks.
On June 1, 2015, a Bel Air manager, Kaj Louis-Johnson,
held a meeting with Bel Air employees during which he provided
them with several documents. One document outlined new
hourly payment procedures and compensation. That document
explained that, going forward, Bel Air employees would be “paid
overtime in accordance with state and federal overtime
requirements,” including for hours worked over eight hours a day
or 40 hours a week. It also explained that employees would be
entitled to rest breaks and meal periods.
Another document, entitled, “General Release,” stated that
it was to “settle all potential claims by Employee against
Employer [Bel Air] that may have accrued up to the date this
Agreement was signed.” The General Release expressly released
claims relating to Bel Air’s “classification of Employee as exempt
rather than non-exempt (hereinafter referred to as ‘Prior
Classification’) that could have been alleged for violations of any
state or federal laws (including but not limited to the California
Labor Code and the Fair Labor Standards Act (29 U.S.C. § 201,
et seq.), Wage Order No. 4, California’s Unfair Business Practices
law, and California’s Private Attorney General Act.” The General
Release stated that it was supported by consideration that
included “[e]mployee’s continued employment as an at-will
5
employee” and additional compensation that the employee would
“on occasion receive . . . for certain hours not actually worked.” 2
Appellants refused to sign the General Release. Several
meetings followed on June 8, 2015. Appellants claim that, at the
first meeting, Louis-Johnson told Appellants and other employees
that Bel Air would terminate their employment if they did not
sign the General Release that day. At subsequent meetings on
the morning of June 8 attended by Bel Air’s owner, Terry Koosed,
its General Counsel, Joshua White, and Louis-Johnson,
Appellants continued to refuse to sign the General Release.
Koosed told Morales that he would “need to find . . . another job”
and wished Delabra “good luck in the future.” White gave
Morales a document that he called a “ ‘severance’ agreement.”
That document was entitled, “Settlement Agreement and General
Release,” and included reference to a proposed settlement
payment of $1,500, which the agreement characterized as a
“disputed amount.” Appellants left the meetings believing they
had been fired.
In their declarations, Appellants denied encouraging other
employees “ ‘to end their employment’ ” and “ ‘create the false
appearance of being terminated by Bel Air.’ ” They also denied
Bel Air’s allegation that they encouraged litigation, stating in
their declarations that they “did not ‘seek to encourage other
BEL AIR employees to quit and sue BEL AIR.’ ”
b. Bel Air’s opposition
Bel Air filed an opposition supported by declarations from
Louis-Johnson, Koosed, White, and other Bel Air employees.
2Appellants submitted the document explaining the new
compensation procedures and the General Release as exhibits to
their motion to strike.
6
Bel Air denied that it had terminated Appellants’ employment. It
also claimed that no Bel Air employee “has ever been told that he
had to sign any employment-related documents, or else he would
lose his job.” According to Bel Air, Appellants voluntarily left
their jobs. Morales said that he had another job starting in a
couple of months that paid substantially more, and Delabra said
that Bel Air had “become too corporate.” Bel Air claimed that
Appellants picked up work equipment on June 8, 2015, giving the
impression that they intended to continue working, but never
returned to work although they were paid “through mid-June.”
According to another Bel Air field installer, after the
meetings on June 8, Morales said that he was “leaving Bel Air,
and that he would soon be sitting on a beach in the Bahamas.”
Koosed said in his declaration that, after the meetings on June 8,
2015, Bel Air attempted to get Appellants to return to work and
that Bel Air continued to pay them through June 15, 2015 (for
Delabra), and June 19, 2015 (for Morales), “despite doing no work
of any kind for Bel Air after the morning meeting on June 8.”
3. The Trial Court’s Ruling
Prior to the hearing on Appellants’ motion to strike on
November 23, 2015, the trial court issued a tentative ruling
granting the motion. With respect to the first step of the anti-
SLAPP analysis (which, as discussed below, focuses on whether a
plaintiff’s claims arise from protected conduct), the court’s
tentative ruling found that the “allegations that defendants
advised, counseled, encouraged, and sought to persuade various
Bel Air employees to pursue employment-related lawsuits
against Bel Air, and that defendants encouraged other Bel Air
employees to quit and sue fall under . . . section 425.16(e)(2).”
7
The court concluded that these allegations “make up the bases for
the claims” in Bel Air’s first three causes of action.
With respect to the second step of the anti-SLAPP
procedure (concerning whether the alleged claims have merit),
the court’s tentative ruling concluded that Bel Air failed to meet
its burden to show a probability that it would prevail on its
claims. The court’s conclusion was supported in part by its
finding that the “litigation privilege applies to the litigation-
related activity.”
After the hearing on the motion, the court “noted that it did
not address the issue of whether during their pre-litigation
activities, defendants were in good faith seriously considering
suing the plaintiff.” 3 The court therefore ordered supplemental
briefing on the issue. Following receipt of the parties’
supplemental briefs and additional declarations, the court
reversed its tentative ruling with respect to prong one of
Appellants’ motion. The court found that “the defendants were
NOT in good faith seriously considering suing the plaintiff in
their prelitigation activities.” The court quoted Appellants’
statements in their declarations that they “did not ‘seek to
encourage other BEL AIR employees to quit and sue BEL AIR.’ ”
However, the court affirmed its tentative ruling with respect to
the second prong of Appellants’ motion.
3 As discussed further below, the record on appeal does not
include a reporter’s transcript, and therefore does not show the
trial court’s reasoning at the hearing.
8
DISCUSSION
1. Appellants Did Not Forfeit Their Appeal by Failing to
Provide a Reporter’s Transcript
Bel Air argues that Appellants’ appeal should be dismissed
because Appellants did not include a transcript of the
November 23, 2015 hearing as part of the appellate record. We
reject the argument.
As reflected in the cases that Bel Air cites, dismissal of an
appeal may be warranted in the absence of a reporter’s transcript
when such a transcript is necessary for meaningful review. (See,
e.g., Foust v. San Jose Construction Co., Inc. (2011) 198
Cal.App.4th 181, 186 [appeal requiring consideration of
testimony could not proceed in the absence of a reporter’s
transcript or a settled statement].) That is not the case here.
Bel Air argues that the November 23, 2015 hearing
involved the parties’ “oral arguments on whether the allegations
at issue were incidental to [Bel Air’s] causes of action, and prong
two in its entirety.” Bel Air does not claim that the hearing
included any live testimony or the introduction of any other
evidence. Nor does it identify any particular matter addressed at
the hearing that this court must consider to decide the appeal.
(See Cal. Rules of Court, rule 8.120(b) [“If an appellant intends to
raise any issue that requires consideration of the oral proceedings
in the superior court, the record on appeal must include a record
of these oral proceedings,” italics added].) While a record of the
hearing would have been helpful to understand the trial court’s
reasoning, it is not necessary here where our review is de novo
and the appellate record includes the trial court’s written orders
and all the evidentiary materials germane to Appellants’ motion.
(See People ex rel. Harris v. Shine (2017) 16 Cal.App.5th 524, 533
9
[no reporter’s transcript of motion hearing was necessary on
appeal where the “arguments on appeal do not require
consideration of colloquy during hearing on the motion”].)
2. Procedure for Deciding Anti-SLAPP Motions
Section 425.16 provides for a “special motion to strike”
when a plaintiff’s claims arise from certain acts constituting the
exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances, “unless the court
determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.” (§ 425.16,
subds. (a) & (b)(1).) Consistent with the statutory scheme, ruling
on an anti-SLAPP motion involves a two-step procedure. First,
the moving defendant must identify “all allegations of protected
activity” and show that the challenged claim arises from that
activity. (Baral, supra, 1 Cal.5th at p. 396; Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1056.) Second, if the defendant makes
such a showing, the “burden shifts to the plaintiff to demonstrate
that each challenged claim based on protected activity is legally
sufficient and factually substantiated.” (Baral, supra, 1 Cal.5th
at p. 396.) Without resolving evidentiary conflicts, the court
determines “whether the plaintiff’s showing, if accepted by the
trier of fact, would be sufficient to sustain a favorable judgment.”
(Ibid.)
Section 425.16, subdivision (e) identifies the categories of
conduct that are protected under the anti-SLAPP statute and
that may support a motion to strike if a plaintiff’s claim arises
from such conduct. One category of such protected conduct is
“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
10
authorized by law.” (§ 425.16, subd. (e)(2).) A claim arises from
protected activity when it is “based on” such activity. (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (Cotati); Mission
Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th
686, 698 (Mission Beverage).)
We apply a de novo standard of review to the trial court’s
order denying Appellants’ motion to strike. (Soukup v. Law
Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
3. Bel Air’s Contract Claims Arise From Allegations
That Appellants Engaged in Protected Conduct
a. Appellants could rely on the allegations in Bel
Air’s complaint in showing that their alleged
prelitigation communications were protected.
The key substantive issue determining whether Appellants’
motion to strike satisfied the first prong of the anti-SLAPP
analysis is whether Appellants’ alleged statements encouraging
other Bel Air employees to quit and “pursue employment-related
lawsuits against Bel Air” amount to communications made in
connection with protected petitioning activity. The parties agree
that statements made in anticipation of litigation may fall into
this category. However, they disagree on whether Appellants
made a sufficient showing that Appellants were anticipating
litigation when they allegedly made these statements to other
Bel Air employees.
The parties also disagree sharply about the role of the
pleadings and the supporting declarations in deciding this
substantive issue. Appellants argue that, under the governing
California Supreme Court cases, “it is the allegations on the face
of the Complaint that determine whether the first prong of the
Anti-SLAPP statute is met,” and courts may not look “beyond the
11
allegations of the complaint being challenged to discern intent or
other motivation.” On the other hand, Bel Air argues that
Appellants were required to support their motion to strike with
evidence showing that Bel Air employees were actually
considering litigation seriously and in good faith at the time
Appellants made the statements at issue. Bel Air claims that
there is no authority “that somehow the language of the operative
pleading can obviate the need to make an evidentiary showing of
good faith and serious consideration of litigation.” Before
analyzing the substantive issue, we consider the parties’ dispute
over the proper procedure to decide it.
Neither party correctly articulates the governing standard.
Appellants are incorrect in suggesting that the trial court was
limited to considering Bel Air’s complaint. Our Supreme Court
has explained that, “[i]n deciding whether the initial ‘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.’ ” (Navellier v. Sletten (2002)
29 Cal.4th 82, 89 (Navellier), quoting § 425.16, subd. (b)(2), italics
added.)
However, Bel Air is also incorrect in claiming that a
defendant who asserts protected prelitigation conduct must
support a motion to strike with evidence regardless of the content
of the plaintiff’s complaint. Bel Air does not cite any case holding
that a defendant moving to strike under section 425.16 must
submit evidence to meet its burden of showing that a plaintiff’s
claim arises from protected activity under prong one. Bel Air
cites cases that consider the evidentiary materials submitted in
connection with a motion to strike to determine whether
particular prelitigation activity occurred in anticipation of
12
litigation. But none of those cases holds that evidence rather
than allegations must determine the outcome of this issue even if
the complaint itself alleges protected conduct.
We conclude that, if the complaint itself shows that a claim
arises from protected conduct (supplemented, if appropriate, with
the plaintiff’s description of the factual basis for its claim in its
declarations), a moving party may rely on the plaintiff’s
allegations alone in making the showing necessary under prong
one without submitting supporting evidence. This conclusion is
based on the language and purpose of the governing statute and
on compelling practical considerations.
As mentioned, section 425.16, subdivision (b)(2) states that
the court “shall consider” both the pleadings and the “supporting
and opposing affidavits.” (Ibid.) But that subdivision does not
state that a moving party must submit affidavits or other
evidentiary support. Such a requirement would be inconsistent
with the statutory purpose for the prong one showing.
The prong one inquiry concerns the decision “whether the
defendant has made a threshold showing that the challenged
cause of action is one arising from protected activity.” (Navellier,
supra, 29 Cal.4th at p. 88.) A claim arises from protected activity
when that activity underlies or forms the basis for the claim.
(Cotati, supra, 29 Cal.4th at p. 78.) A plaintiff’s complaint
ultimately defines the contours of the claims. Thus, our Supreme
Court has explained that, in the first step of the anti-SLAPP
analysis, “the moving defendant bears the burden of identifying
all allegations of protected activity, and the claims for relief
supported by them.” (Baral, supra, 1 Cal.5th at p. 396, italics
added; see Briggs, supra, 19 Cal.4th at pp. 1114–1115 [analyzing
13
the allegations in the plaintiffs’ complaint to determine whether
their claims arose from protected petitioning conduct].)
Consistent with the primary role of the complaint in
identifying the claims at issue, courts have rejected efforts by
moving parties to redefine the factual basis for a plaintiff’s claims
as described in the complaint to manufacture a ground to argue
that the plaintiff’s claims arise from protected conduct. For
example, in Central Valley Hospitalists v. Dignity Health (2018)
19 Cal.App.5th 203, the First Appellate District recently affirmed
the denial of an anti-SLAPP motion by the operator of a hospital
that claimed the plaintiff’s claims were based on protected
medical peer review activities. The complaint did not allege facts
concerning peer review, and expressly disavowed basing any
claims on peer review conduct. The court rejected the defendant’s
attempt to construct a peer review claim through facts included
in its own declarations. Citing a number of cases that reached
similar conclusions, the court explained that “ ‘[t]he question is
what is pled―not what is proven.’ ” (Id. at p. 217, quoting
Comstock v. Aber (2012) 212 Cal.App.4th 931, 942 (Comstock).)
Similarly, courts have rejected attempts by plaintiffs
opposing anti-SLAPP motions to disavow their own allegations in
favor of evidence that is inconsistent with their complaints. For
example, in Comstock the court held that the cross-complainant’s
claim that the cross-defendant, Aber, had made a complaint to
the police brought the claim within the scope of the anti-SLAPP
statute, despite the cross-complainant’s argument in opposing the
anti-SLAPP motion that Aber did not actually complain to the
police. (Comstock, supra, 212 Cal.App.4th at p. 942; see
Contreras v. Dowling (2016) 5 Cal.App.5th 394, 412 [plaintiff’s
allegations in a prior complaint and her own contentions in her
14
submissions in connection with the defendant’s anti-SLAPP
motion showed that her claim was based on protected attorney
conduct even though the allegations were not supported by
evidence in the record].)
Thus, the rule in section 425.16, subdivision (b)(2) that a
court must consider affidavits as well as pleadings in the first
step of the anti-SLAPP procedure does not provide license to
ignore the allegations of a plaintiff’s complaint. Rather, it
provides a defense against artful pleading in which “the
defendant’s act of petitioning the government is made to appear
as defamation, interference with business relations, restraint of
trade and the like.” (Wilcox v. Superior Court (1994) 27
Cal.App.4th 809, 821.) Obviously this purpose is not fulfilled by
requiring evidentiary support for a motion when the pleadings
themselves show that a plaintiff’s claims arise from protected
conduct. We therefore conclude that, if the complaint itself
alleges acts included within section 425.16, subdivision (e), there
is no reason to go beyond the scope of those allegations to
determine whether a plaintiff’s claims arise from protected
conduct.
This conclusion is also supported by a compelling practical
concern. As in this case, a defendant may deny acts alleged in
the plaintiff’s complaint yet also recognize that those allegations
describe protected conduct. If the defendant is required to
support an anti-SLAPP motion with evidence about the nature of
his or her conduct rather than relying on the complaint itself, the
defendant might not be able to do so without contradicting his or
her own understanding of the relevant events. As mentioned
above, this would create an irrational procedure in which a
15
defendant is precluded from mounting an anti-SLAPP challenge
to factually baseless claims. 4
We see no reason to follow a different procedure where a
complaint alleges conduct in anticipation of litigation. If the
complaint itself alleges protected prelitigation communications, a
defendant has no obligation to provide evidence of his or her
4 Where a defendant denies engaging in protected conduct,
one might argue that a motion to strike a plaintiff’s claim that
alleges such conduct does not meet the purpose of an anti-SLAPP
motion. Section 425.16 explains that the Legislature intended
the anti-SLAPP procedure to protect against “lawsuits brought
primarily to chill the valid exercise of the constitutional right of
freedom of speech and petition for the redress of grievances.”
(§ 425.16, subd. (a).) If a defendant has not actually exercised
such a right, how can a lawsuit chill it? However, the argument
is ultimately both irrelevant and wrong. It is irrelevant because
our Supreme Court has explained that a party bringing an anti-
SLAPP motion need not prove that a plaintiff’s claim was
intended to, or actually did, chill any protected activity. (See
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th
53, 66–67; Cotati, supra, 29 Cal.4th at pp. 75–76.) And it is
wrong because a meritless lawsuit asserting a claim based on
alleged protected activity can chill such activity even if it did not
occur in a particular case. For example, a plaintiff might file a
series of meritless claims against a public interest organization
based upon the organization’s free speech or petitioning activity
with the goal of imposing burdensome litigation costs. The fact
that the organization did not actually engage in the protected
conduct alleged in a particular case would not diminish the cost
of defending the lawsuit. Permitting a plaintiff to proceed with a
lawsuit intended to burden protected activity on the ground that
the lawsuit has no basis in fact would be a perverse outcome
indeed.
16
actual subjective intent at the time the communications occurred
to show that the plaintiff’s claims arise from protected conduct. 5
Our conclusion that Appellants could rely upon the
allegations of the complaint in bringing their motion to strike is
not affected by Appellants’ decision to submit declarations in
support of their motion that disputed Bel Air’s allegations in
some respects. As mentioned above, Appellants denied that they
5 On the other hand, we do not agree with Appellants’
suggestion that a court is precluded from considering evidence of
the defendant’s subjective intent if the complaint itself is not
sufficient to show that alleged communications were in
anticipation of litigation. The suggestion is inconsistent with the
language of section 425.16, subdivision (b)(2), and would
unreasonably limit a court’s analysis of the plaintiff’s claims
when a complaint is artfully drafted or simply unclear. For
example, in Salma v. Capon (2008) 161 Cal.App.4th 1275, the
cross-defendant (Capon) brought an anti-SLAPP motion directed
in part to allegations that he had made inquiries with city
officials that cast doubt on the cross-complainant’s ownership of
certain real property. The court noted that “Capon’s contacts
with municipal departments were only vaguely described in the
cross-complaint,” and, citing section 425.16, therefore referred to
“Capon’s description of such conduct in his declaration to
determine if it was protected or unprotected activity.” (Id. at
p. 1286.) Based in part on Capon’s testimony that he was
“seriously considering litigation,” the court concluded that
Capon’s communications with municipal departments were
protected either as requests for the initiation of official
proceedings or as part of an investigation in anticipation of
litigation. (Id. at pp. 1286–1287.) If it had been limited to
considering the cross-complainant’s allegations alone, the court
might not have had sufficient basis to grant the anti-SLAPP
motion.
17
encouraged other employees to quit and to sue. Appellants also
submitted a declaration from another Bel Air employee testifying
that Appellants never “advised, counseled, or persuaded me to
attempt to quit my job, to create the false appearance of being
terminated by Bel Air Internet, or to sue Bel Air Internet.”
Having concluded that Appellants could properly argue
that the allegations in the complaint are sufficient to show that
Bel Air’s claims arise from protected activity, we also hold that
Appellants did not forfeit that argument by choosing to
controvert the factual basis of Bel Air’s claims in connection with
the second prong of the anti-SLAPP procedure. A contrary rule
would place an unfair burden on a defendant filing an anti-
SLAPP motion when the complaint alleges protected conduct but
the defendant disputes the factual underpinnings of the
plaintiff’s claims. A defendant in such a case could be forced to
limit his or her arguments attacking the merits of the plaintiff’s
claims (in connection with the second prong of the anti-SLAPP
analysis) to preserve his or her right to argue that the claims
arise from protected conduct (in connection with prong one). Like
a rule requiring a defendant to provide evidence of protected
activity rather than relying on the allegations in the complaint,
this would be a paradoxical application of the anti-SLAPP
procedure that would place an additional burden on moving
parties who are faced with factually baseless claims.
Such a rule would be inconsistent with the purpose of the
anti-SLAPP procedure in another respect as well. An anti-
SLAPP motion is a preliminary procedure designed to weed out
meritless claims arising from protected conduct. It is not a device
to decide the ultimate merits of a claim by resolving factual
disputes. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907–908;
18
Freeman v. Schack (2007) 154 Cal.App.4th 719, 733 [court
“accept[s] plaintiff’s evidence as true” for purposes of analyzing
whether the plaintiff’s claim arose from protected activity].) A
defendant’s declaration denying that he or she engaged in the
conduct alleged in the complaint does not foreclose the possibility
that a fact-finder could later find that he or she did in fact engage
in that conduct. Foreclosing an anti-SLAPP motion based upon
one version of the facts would irrationally and unfairly disregard
this possibility.
Thus, Appellants could permissibly base their anti-SLAPP
motion on Bel Air’s allegations as set forth in Bel Air’s complaint
and explained in Bel Air’s declarations, so long as the allegations
themselves show that Bel Air’s claims arise from acts that are
protected under section 425.16, subdivision (e). As discussed
below, Bel Air’s allegations do so.
b. Bel Air’s complaint and the declarations Bel Air
submitted in connection with Appellants’
motion to strike show that Appellants engaged
in protected prelitigation conduct.
Section 425.16, subdivision (e) identifies the categories of
conduct that are protected under the statue. That conduct
includes a “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.” (§ 425.16, subd. (e)(2).)
Although this description can be read to refer to pending
litigation, our Supreme Court has explained that communications
that are “ ‘preparatory to or in anticipation of the bringing of an
action or other official proceeding’ ” are within the scope of
protected conduct under Code of Civil Procedure section 425.16
19
just as they are within the protection of the litigation privilege
under Civil Code section 47, subdivision (b). (Briggs, supra,
19 Cal.4th at p. 1115; Neville v. Chudacoff (2008) 160
Cal.App.4th 1255, 1268.)
Such conduct “preparatory to” litigation can include
communications in connection with counseling or encouraging
others to sue. For example, in Briggs, the defendant—a nonprofit
corporation that counseled tenants and mediated landlord-tenant
disputes—counseled a tenant concerning a malfunctioning
refrigerator, leading to a successful small claims action by the
tenant against her landlord. (Briggs, supra, 19 Cal.4th at
pp. 1109–1110.) The court held that the defendant’s counseling
of the tenant was “in anticipation of litigation” and was therefore
protected conduct under section 425.16. (Id. at p. 1115.) The
court noted that “the statute does not require that a defendant
moving to strike under section 425.16 demonstrate that its
protected statements or writings were made on its own behalf
(rather than, for example, on behalf of its clients or the general
public).” (Id. at p. 1116; see Ludwig v. Superior Court (1995)
37 Cal.App.4th 8, 18 (Ludwig) [instigating lawsuits by others was
protected conduct under section 425.16].)
Bel Air acknowledges that prelitigation conduct may be
protected under section 425.16, but argues that “the courts have
imposed a ‘good faith and serious consideration’ requirement
unique to pre-litigation activity.” Bel Air cites authority
explaining that this requirement is intended to limit protection of
prelitigation communications to circumstances in which future
litigation is “genuinely contemplated,” rather than just a
negotiating tactic or a hypothetical possibility. (People ex rel.
Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 824
20
(Anapol); see Action Apartment Assn., Inc. v. City of Santa
Monica (2007) 41 Cal.4th 1232, 1251 (Action Apartment)
[litigation privilege applies to a prelitigation communication only
if the communication “relates to litigation that is contemplated in
good faith and under serious consideration”].) 6
The requirement to show that litigation is seriously
contemplated ensures that prelitigation communications are
actually connected to litigation and that their protection
therefore furthers the anti-SLAPP statute’s purpose of early
dismissal of meritless lawsuits that arise from protected
petitioning activity. (§ 425.16, subd. (a); Anapol, supra, 211
Cal.App.4th at p. 824 [the good faith and serious consideration
requirement “guarantees that hollow threats of litigation are not
protected”]; cf. Action Apartment, supra, 41 Cal.4th at p. 1251
[the policy underlying the litigation privilege of affording “ ‘the
utmost freedom of access to the courts’ ” is furthered only if
litigation is “seriously considered”].)
Thus, for example, when a cause of action arises from
conduct that is a “necessary prerequisite” to litigation, but will
lead to litigation only if negotiations fail or contractual
commitments are not honored, future litigation is merely
6 The litigation privilege established by Civil Code
section 47, subdivision (b) and the anti-SLAPP procedure
established by Code of Civil Procedure section 425.16 are
substantively different and “serve quite different purposes.”
(Flatley v. Mauro (2006) 39 Cal.4th 299, 322 (Flatley).)
Nevertheless, the two statutes are related, and courts “have
looked to the litigation privilege as an aid in construing the scope
of section 425.16, subdivision (e)(1) and (2) with respect to the
first step of the two-step anti-SLAPP inquiry.” (Flatley, at pp.
322–323; see Briggs, supra, 19 Cal.4th at p. 1115.)
21
theoretical rather than anticipated and the conduct is therefore
not protected prelitigation activity. (See, e.g., Mission Beverage,
supra, 15 Cal.App.5th at pp. 703–704 [letter commencing
termination of a distributor agreement was not preparatory to
statutorily required arbitration, as the statute permitted resort to
arbitration only if good-faith negotiations failed]; Anapol, supra,
211 Cal.App.4th at pp. 826–827 [insurance claims are often paid
in the ordinary course of business and are therefore not protected
prelitigation activity unless the circumstances show that a claim
was merely a necessary prerequisite to expected litigation].)
Similarly, payment demands with vague references to future
“ ‘legal remedies’ ” may not demonstrate that litigation was
actually under serious consideration. (A.F. Brown Electrical
Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137
Cal.App.4th 1118, 1128.) And even threats of litigation may not
be in good faith when the threatened litigation is barred by
principles of res judicata. (See Bailey v. Brewer (2011) 197
Cal.App.4th 781, 793–795.)
In contrast to the mere hypothetical possibility of litigation
in such circumstances, Bel Air’s complaint in this case shows that
its contract claims arise from Appellants’ alleged serious and
active encouragement of litigation. The theory of the complaint is
that Appellants “advised, counseled, encouraged and sought to
persuade” other Bel Air employees to refuse Bel Air’s request to
sign a release of their potential wage and hour claims, and
instead to quit and “pursue employment-related lawsuits”
against Bel Air. The serious nature of this alleged
encouragement is shown by Bel Air’s claim that it caused
“disruptions of BEL AIR’s contractual, employment relationships
with its employees” and resulted in damages in excess of the
22
“$25,000 jurisdictional minimum.” Bel Air also alleges, on
information and belief, that Appellants’ encouragement of other
employees occurred “possibly at the encouragement or direction
of their own lawyers,” suggesting a serious litigation strategy.
Bel Air’s declarations further explain the factual basis for
Bel Air’s claim that Appellants attempted to persuade other
employees to quit and sue. (See Dignity Health, supra, 19
Cal.App.5th at p. 217 [although the complaint was “factually
inadequate,” “the essence of [plaintiff’s] case can be gleaned from
it and the declarations filed in opposition to the anti-SLAPP
motion”].) In his declaration in support of Bel Air’s opposition to
Appellants’ motion, Koosed testified that he and other employees
were forced to spend “dozens of hours in total dealing with the
consequences of [Appellants’] vocal dissent and encouragement of
other employees to not sign the documents distributed on June 1,
2015, and even leave their jobs at Bel Air.” 7 Those documents
included the General Release concerning potential employment
claims. There is no apparent reason why Bel Air would claim
that so much time was necessary to deal with employee concerns
about the documents Bel Air asked them to sign other than to
address a serious interest in retaining the right to sue.
Bel Air also argued below that Appellants were themselves
seriously considering litigation at the time they allegedly urged
others to quit and sue. Bel Air submitted the declaration of a Bel
Air senior field installer, Kenneth Marquez, who said that he
7 The trial court sustained Appellants’ objections to some of
Bel Air’s declarations, including this testimony by Koosed. We
cite the testimony only for its relevance in clarifying the basis for
Bel Air’s allegations, not as competent evidence to prove
particular facts.
23
attended a meeting of field installers with Morales on June 8,
2015, during which appellant Morales said “that he was leaving
Bel Air, and that he would soon be sitting on a beach in the
Bahamas.” Bel Air argued in the trial court that the statement
gave “the impression that [Morales] intended to sue Bel Air.”
Bel Air’s argument that Appellants intended to sue certainly
suggests that Appellants anticipated litigation before they left
Bel Air, and also suggests that their alleged statements
encouraging litigation by others were serious. 8
Bel Air also argues that, regardless of Appellants’ intent,
their conduct could be protected under section 425.16 only if
Appellants showed that the persons whom they allegedly
encouraged to sue themselves seriously considered filing a
lawsuit. We do not read the “serious consideration” requirement
so narrowly.
Under section 425.16, protected conduct includes “any
written or oral statement or writing made in connection with an
issue under consideration or review by a . . . judicial body.”
(§ 425.16, subd. (e)(2), italics added.) A statement has a
sufficient “connection” with anticipated litigation if the person
making the statement is engaged in a serious effort to encourage
or counsel litigation by another.
8 Bel Air claims that no lawsuit was filed, but the record
shows that Appellants have in fact filed a cross-complaint against
Bel Air alleging employment claims. At oral argument, Bel Air
pointed out that, while Appellants have sued, the employees that
they allegedly encouraged to sue have not. However, as
discussed below, Appellants’ own right to petition is at issue
through Bel Air’s allegation that they encouraged others to sue.
Appellants’ decision to file a cross-complaint is relevant to their
intention to exercise that right.
24
This conclusion is consistent with our Supreme Court’s
decisions holding that counseling or encouraging litigation by
others is privileged and protected. As discussed above, the court
has explained that a person’s prelitigation communications may
be “in furtherance of the person’s right of petition” even if the
communications were made on behalf of another. (§ 425.16, subd.
(b)(1); Briggs, supra, 19 Cal.4th at p. 1116.) In the course of
holding in Briggs that the defendant’s counseling of a tenant to
pursue her legal remedies against her landlord was protected
conduct, the court also cited other cases with approval in which
courts held that the defendants’ encouragement of third parties
to participate in litigation was protected conduct. (Ibid., citing
Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47
Cal.App.4th 777, 781, 784 [letter to celebrities soliciting their
support for a proposed complaint to the Attorney General was a
protected communication], and Ludwig, supra, 37 Cal.App.4th at
p. 18 [real estate developer’s alleged instigation of lawsuits by
others challenging a competing discount mall project was
protected conduct].)
In Rubin v. Green (1993) 4 Cal.4th 1187, the court also held
that communications soliciting litigation by others were protected
by the litigation privilege. In that case, the complaint alleged
that a resident of a mobile home park, Cedar Village, and a law
firm solicited the participation of other Cedar Village residents as
clients in anticipated litigation against an owner concerning park
conditions. (Id. at pp. 1191–1192.) The court held that the
alleged solicitation was communicative and within the scope of
the litigation privilege. (Id. at p. 1193.) The court noted that
“numerous decisions have applied the privilege to prelitigation
25
communications, leaving no doubt as to its applicability to the
facts alleged in the amended complaint.” (Id. at p. 1194.)
A rule that predicates the protected status of a prelitigation
communication on the subjective intent of the recipient of the
communication would undermine the purpose of the anti-SLAPP
statute. A person who counsels litigation by another exercises
his or her own constitutional right to petition the government.
As the court explained in Ludwig: “A person can exercise his own
rights by supporting the forceful activities of others; it would be
absurd to hold that the confident opponent who takes the public
podium is protected, while the shy opponent who prefers to lend
moral support by standing silently in the audience is not.”
(Ludwig, supra, 37 Cal.App.4th at p. 18.) Whether or not a
person intends to exercise his or her constitutional right to
petition the government by persuading another to file a lawsuit
depends upon the state of mind of the person offering the
persuasion, not the state of mind of the person whom he or she
attempts to persuade.
Such a rule would also be arbitrary. By making the
protected status of a communication contingent on the intent of
the recipient, the rule would mean that the same communication
is protected when made to some persons but not others. For
example, if the organization in Briggs had advised a number of
similarly situated tenants to sue their landlord, the same advice
would be treated differently depending upon whether or not
particular tenants seriously considered following that advice.
Such an irrational result is inconsistent with the legislative
requirement that section 425.16 be “construed broadly.”
(§ 425.16, subd. (a).)
26
We therefore conclude that Appellants’ alleged conduct in
encouraging other Bel Air employees to sue was protected
prelitigation conduct.
c. Appellants’ alleged prelitigation activity was
not incidental to Bel Air’s claims.
Bel Air claims that, even if Appellants’ alleged
encouragement of other employees to sue was protected
prelitigation activity, such acts cannot support an anti-SLAPP
motion here because they were merely “incidental or collateral to
the causes of action in which they appear.” Bel Air argues that
the portion of Appellants’ alleged communications with other Bel
Air employees that actually urged a breach of the employees’
contracts was Appellants’ alleged encouragement for those
employees “to not do their jobs,” and that the encouragement to
sue was incidental to that interference. This argument amounts
to an attempt to re-characterize Bel Air’s own allegations to avoid
an anti-SLAPP challenge, and we therefore reject it. (See
Comstock, supra, 212 Cal.App.4th at p. 942.)
Allegations that are merely incidental or collateral to a
plaintiffs’ claim are not subject to a motion to strike under section
425.16. (Baral, supra, 1 Cal.5th at p. 394.) “Allegations of
protected activity that merely provide context, without
supporting a claim for recovery, cannot be stricken under the
anti-SLAPP statute.” (Ibid.) “Rather, a claim may be struck only
if the speech or petitioning activity itself is the wrong complained
of, and not just evidence of liability or a step leading to some
different act for which liability is asserted.” (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057,
1060 (Park).) For example, “where a plaintiff’s claim attacks only
the defendant’s decision to undertake a particular act, and if that
27
decision is not itself protected activity, that claim falls outside
the ambit of the anti-SLAPP statute.” (Mission Beverage, supra,
15 Cal.App.5th at p. 701, citing Park, at pp. 1068–1069.)
Here, Appellants’ alleged prelitigation communications
with other employees did not simply provide evidence of liability
or occur close in time to some other act that is the basis for Bel
Air’s claim. Rather, according to Bel Air’s allegations, Appellants
urged other employees to pursue a particular course of conduct:
refuse to sign the General Release that Bel Air presented; quit
Bel Air while claiming wrongful termination; and instead “pursue
employment-related lawsuits” against Bel Air. Appellants’
alleged encouragement to sue was not a separate act that simply
evidenced or led to Appellant’s alleged inducement of a contract
breach; it was an inseparable part of the alleged communication
that formed the basis for Bel Air’s claims. Contrary to Bel Air’s
argument, its complaint does not allege that Appellants simply
encouraged other employees “to not do their jobs.” Rather, it
alleges that Appellants encouraged other employees to “quit and
sue.”
The complaint does not allege any motivation for
Appellants’ alleged encouragement of other employees to quit
other than to pursue litigation. According to Bel Air’s
declarations, Appellants presented this alternative as a lucrative
alternative to continued employment at Bel Air. According to
Marquez, Morales said he would “soon be sitting on a beach in
the Bahamas.” Daniel Hernandez, another Bel Air field installer,
said in his declaration that Morales told him he was “leaving Bel
Air, and that he would soon be sitting on a beach in the
Bahamas,” and that in the same conversation Morales
“encouraged me to join him and quit my job at Bel Air.”
28
Appellants’ alleged encouragement to sue is therefore an integral
part of the communications on which Bel Air’s claims for tortious
interference and breach of contract are based, rather than just
evidence of some other decision or conduct that forms the basis
for Bel Air’s claims. (See Park, supra, 2 Cal.5th at pp. 1064–
1066.) We therefore reject Bel Air’s argument that Appellants’
protected prelitigation conduct was merely incidental to Bel Air’s
claims.
4. Appellants Are Entitled to Attorney Fees
Section 425.16, subdivision (c)(1) provides that, with
exceptions for certain causes of action not relevant here, “a
prevailing defendant on a special motion to strike shall be
entitled to recover his or her attorney’s fees and costs.” Bel Air
nevertheless argues that Appellants should not be awarded
attorney fees, even if they are successful on appeal, because their
motion would have no or minimal effect. Bel Air cites cases
holding that a defendant that files an anti-SLAPP motion that is
only partially successful and that does not provide any practical
benefit is not entitled to attorney fees under section 425.16 as a
“prevailing defendant.” (See, e.g., Moran v. Endres (2006) 135
Cal.App.4th 952, 954–955.)
As a result of our holding reversing the trial court’s order,
Appellants have prevailed in full on their motion to strike. They
are therefore a “prevailing defendant” for purposes of section
425.16, subdivision (c)(1). Moreover, the relief they have
obtained is not illusory. As explained below, their motion results
in the dismissal of one of Bel Air’s causes of action (intentional
interference) and eliminates one of the two theories of contract
breach in two other causes of action (i.e., encouragement of other
29
employees to quit and sue). Appellants are therefore entitled to
their attorney fees.
5. Conclusion
Bel Air’s first three causes of action arise in whole or in
part from protected prelitigation activity. As discussed above,
Bel Air’s first cause of action for intentional interference is based
upon the allegation that Appellants urged other Bel Air
employees to quit and sue the company. Bel Air’s second and
third causes of action are based in part on that theory and in part
on the theory that Appellants did no work for a period of time
while Bel Air was paying them.
On appeal, Bel Air has not claimed any error in the trial
court’s ruling that Bel Air failed to show a probability of success
under prong two of the anti-SLAPP procedure. Thus, Bel Air’s
claims that arise from alleged protected activity under section
425.16, subdivision (e) must be dismissed. This means that Bel
Air’s first cause of action must be dismissed in its entirety and
the portions of Bel Air’s second and third causes of action that are
based on the claim that Appellants encouraged other employees
to quit and sue must be stricken. (See Baral, supra, 1 Cal.5th at
p. 393 [“an anti-SLAPP motion, like a conventional motion to
strike, may be used to attack parts of a count as pleaded”].)
30
DISPOSITION
The trial court’s order denying Appellants’ motion to strike
under Code of Civil Procedure section 425.16 is reversed.
Bel Air’s first cause of action is dismissed. The following
language and the claims it supports are stricken from paragraphs
17 and 23 in Bel Air’s second and third causes of action: “and
acting in contravention of their duties of care and loyalty, seeking
to encourage other BEL AIR employees to quit and sue BEL AIR,
and thereby disrupt BEL AIR’s business operations.”
Appellants are entitled to attorney fees on their motion to
strike and their attorney fees and costs on this appeal. The case
is remanded for the trial court’s determination of the amount of
attorney fees and for further proceedings on the remaining
portions of Bel Air’s complaint and on Appellants’ cross-
complaint.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
31