Emerson Maintenance Assn. v. Gorenberg CA4/3

Filed 3/30/22 Emerson Maintenance Assn. v. Gorenberg CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

EMERSON MAINTENANCE
ASSOCIATION,
G059246
Plaintiff, Cross-defendant and
Respondent, (Super. Ct. No. 30-2018-01027462)

v. OPINION

ALAN GORENBERG et al.,

Defendants, Cross-complainants and
Appellants.

Appeal from an order of the Superior Court of Orange County, Glenn R.
Salter, Judge. Reversed and remanded with instructions.
Anderson Law Firm and Martin W. Anderson for Defendant, Cross-
complainant and Appellant Alan Gorenberg.
 The Vanderpool Law Firm, Douglas B. Vanderpool and Michael J.
Fairchild for Defendant, Cross-complainant and Appellant Ladan E. Hariri.
Pamela Abbott Moore and Nicholas J. Wolfsen for Plaintiff, Cross-
defendant and Respondent.
INTRODUCTION
While the statute itself looks innocent enough, the Byzantine complexity of
the application of Code of Civil Procedure section 425.161 (the anti-SLAPP statute) has
vexed our profession throughout the three decades since its enactment. 2 This case
requires us to address an issue that has contributed greatly to that vexation: When does a
cause of action arise from constitutionally protected activity?
Answering this question can become an involute process, particularly in
cases in which a cause of action is supported by so-called “mixed” allegations; both
protected and unprotected conduct. Out of which type of conduct does the cause of
action arise? In Baral v. Schnitt (2016) 1 Cal.5th 376 (Baral), the California Supreme
Court provided insight on how courts should answer this question: we should sift out
allegations of unprotected activity and concentrate our attention on whether the
allegations of protected activity can provide a basis for liability. (Id. at p. 393.) In so
doing, the high court endorsed a particularized use of the anti-SLAPP motion more in the
vein of a traditional motion to strike: “the Legislature’s choice of the term ‘motion to
strike’ reflects the understanding that an anti-SLAPP motion, like a conventional motion
to strike, may be used to attack parts of a count as pleaded.” (Id. at pp. 393-394.)
The moving party in this case took the Baral court’s advice and sought to
strike a specific allegation from the complaint. This strategic move turned out to be key,

1 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
2 The anti-SLAPP statute permits a defendant to file a special motion to strike a “cause of action
against a person arising from any act of that person in furtherance of the person's right of petition or free speech
under the United States Constitution or the California Constitution in connection with a public issue[.]” (§ 425.16,
subd. (b)(1).)

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focusing our attention on a single act which we conclude today – contrary to the trial
court’s ruling – was protected. We therefore reverse and remand for further proceedings
as herein described.
FACTS
Appellants Dr. Alan Gorenberg and his wife, Ladan Hariri, own a property
located on Rogue River Bend in Tustin. The property is within the Orange County
courthouse district and is subject to conditions, covenants, and restrictions (CC&R’s)
propounded by respondent Emerson Maintenance Association (the Association). The
CC&R’s require residents to submit plans for any construction or improvements on their
property to the Association’s architectural review committee (ARC) for approval, and
such approvals must be received prior to application for building permits.
In 2009, appellants applied to ARC for approval to build a two-story pool
house, five-car garage, and attendant landscaping and hardscaping. In September 2009,
ARC sent appellants a letter approving the plans with “minor notations” to be followed
during construction.
Eight months later, appellants submitted to ARC a request to revise their
previous application. This time, some aspects of the plans were approved and others
were rejected. By letter dated June 15, 2010, ARC advised it would not approve several
paint and stain colors appellants had chosen for exterior-facing doors, windows, trim,
eaves, and overhangs. Appellants would need to resubmit with samples of the colors and
product names. Appellants never did.
Some time later, appellants planted a number of trees on their property
without seeking ARC approval. The Association asked them to provide an update on the
status of the alterations, but appellants failed to do so. In November 2015, the
Association’s counsel sent them a request for alternative dispute resolution because they
had never submitted an updated application for the construction work, and there had been
no application at all for the landscaping work. Counsel asked appellants to cease and

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desist all construction until the issues could be resolved. Appellants did not agree to
alternative dispute resolution, but construction stopped on the project, so the Association
considered the matter closed.
In February 2018, however, appellants began doing work on the property
again without ARC approval. This work included installing artificial turf, attaching
lighting and wrought iron to an Association-owned fence, installing a shed in the
backyard visible from common areas, erecting two concrete pillars on Association
property, storing building materials, and significantly cutting and, in the opinion of
consulting professionals, “mutilati[ng]” trees located on both appellants’ and the
Association’s property. The Association’s counsel again sent a cease-and-desist letter,
advising appellants the issues over the disputed construction would hopefully be resolved
at a hearing in March 2018. The letter warned legal action could result should appellants
continue the unauthorized work.
At the March 2018 hearing, appellants agreed to provide a complete set of
full-size plans and specifications along with samples. But they did not. Instead, they
gave ARC conceptual plans without elevation, detail, specifications, or samples. When
ARC approval was not forthcoming, appellants proceeded to apply for a building permit
from the City of Tustin. The city issued a permit on June 15, 2018, for gas and electrical
line work, construction of two gazebos and a shed, and relocation of a fence. In response
to Association objections, appellants said the work did not require ARC approval.
The Association filed suit in October 2018 and asserted claims for breach
of the CC&R’s, specific performance, and injunctive and declaratory relief. Appellants
were served with the initial complaint in November 2018 and retained counsel, who
discussed with his adversary the possibility of resolving the matter through mediation. A
stipulation was reached, and the matter advanced at a glacial pace until appellants’
counsel determined mediation was no longer bearing any fruit.

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 Appellants’ counsel withdrew from the mediation agreement on December
4, 2019, and filed an anti-SLAPP motion two days later. Appellants sought to strike the
pleading because they contended the lawsuit arose out of a written statement made before
an executive agency – their application to the City of Tustin for a building permit. They
claimed any cause of action based on the permit lacked merit because it was barred by the
privilege provided in Civil Code section 47. Appellants also asked the trial court to
exercise its discretion to consider the motion even though it was filed more than 60 days
after service of the complaint. The trial court denied the anti-SLAPP motion because it
found the lawsuit was not grounded in a protected activity.
DISCUSSION
The anti-SLAPP statute “‘“sets out a procedure for striking complaints in
harassing lawsuits that are commonly known as SLAPP suits . . ., which are brought to
challenge the exercise of constitutionally protected free speech rights.” . . . “The anti-
SLAPP statute does not insulate defendants from any liability for claims arising from the
protected rights of petition or speech. It only provides a procedure for weeding out, at an
early stage, meritless claims arising from protected activity. Resolution of an anti-
SLAPP motion involves two steps. First, the defendant must establish that the challenged
claim arises from activity protected by section 425.16. [Citation.] If the defendant makes
the required showing, the burden shifts to the plaintiff to demonstrate the merit of the
claim by establishing a probability of success.”’ (Sweetwater Union High School Dist. v.
Gilbane Building Co. (2019) 6 Cal.5th 931, 940.)” (Muddy Waters, LLC v. Superior
Court (2021) 62 Cal.App.5th 905, 916.)
The standard of review for the denial of an anti-SLAPP motion is de novo.
“‘“. . . Thus, we apply our independent judgment, both to the issue of whether the cause
of action arises from a protected activity and whether the plaintiff has shown a
probability of prevailing on the claim.”’ (South Sutter, LLC v. LJ Sutter Partners, L.P.
(2011) 193 Cal.App.4th 634, 657.)” (Balla v. Hall (2021) 59 Cal.App.5th 652, 671.)

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 I. Did the Association’s cause of action against appellants
arise out of protected activity?
In the first prong of the anti-SLAPP analysis, the defendant has the burden
to do two things: (1) “identify the activity [on which] each challenged claim rests,” and
(2) “demonstrate that” such “activity is protected by the anti-SLAPP statute.” (Wilson v.
Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) “[A] claim is not subject to a
motion to strike simply because it contests an action or decision that was arrived at
following speech or petitioning activity, or that was thereafter communicated by means
of speech or petitioning activity. 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.) This requires
courts to “consider the elements of the challenged claim and what actions by the
defendant supply those elements and consequently form the basis for liability.” (Id. at p.
1063.) “When relief is sought based on allegations of both protected and unprotected
activity, the unprotected activity is disregarded at this stage. If the court determines that
relief is sought based on allegations arising from activity protected by the statute, the
second step is reached.” (Baral, supra, 1 Cal.5th at p. 396.)
“Unless they are unreasonable, . . . CC&R’s in the declaration governing a
common interest development may be enforced as equitable servitudes and as covenants
running with the land. (Civ. Code, [§]§ 1354, subd. (a), 1460 et seq.; Nahrstedt v.
Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 375–376.) The CC&R’s
benefit and bind the owners of all separate interests in the project. (Civ. Code, § 1354,
subd. (a).) Unless the declaration provides otherwise, CC&R’s may be enforced by any
owner of a separate interest, by the association or by both. [Citations.] A party who is
damaged by a violation of the CC&R’s may seek money damages.” (Cutujian v.
Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379, 1384-1385.)

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 The Association’s claims are grounded in multiple alleged violations of the
CC&R’s; most of them unprotected (i.e., appellants’ construction of improvements
without ARC approval) and one of them potentially protected (i.e., the application for
building permit). As Baral requires, we disregard the former, and focus on the latter. To
their credit, appellants recognized the mixed nature of the claim when they filed their
anti-SLAPP motion and sought to strike not the complaint as a whole, but only the
portions of the complaint impacted by what they argued to be protected activity: their
application for a building permit from the city. In this sense, their motion was surgical.
What it leaves us to resolve is whether the building permit application is
protected and whether it supplies the elements necessary for the Association’s claim.
The anti-SLAPP statute enumerates several categories of protected activity,
including “any written or oral statement or writing made before a legislative, executive,
or judicial proceeding, or any other official proceeding authorized by law,” and “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[.]” (§ 425.16, subd. (e).) Additionally, “any other conduct in
furtherance of the exercise of the constitutional right of petition” is protected. (Ibid.)
As part of its cause of action for breach of the CC&R’s, the Association
alleges appellants “have applied for and obtained a permit” from the city “in violation of”
the CC&R’s. The application itself is not attached to the complaint, but the building
permit issued by the city is. While appellants did not provide any evidence of their
application, instead stating in conclusory fashion that it was “clearly a written statement
made before an executive body,” we are nevertheless confident the application for the
building permit itself had to consist of communications, either written or oral, to the
city’s building department. What other form could it take?
The Association contends the application for a building permit was not a
protected activity under the authority supplied by Levy v. City of Santa Monica (2004)

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114 Cal.App.4th 1252 (Levy), Shahbazian v. City of Rancho Palos Verdes (2017) 17
Cal.App.5th 823 (Shahbazian), and Gotterba v. Travolta (2014) 228 Cal.App.4th 35
(Gotterba). Finding Shahbazian particularly persuasive, the trial court agreed. We do
not.
In explaining our disagreement, we initially concede that planning and
permitting activities are not always protected under the anti-SLAPP statute. Our own
research reveals the statute has been held to apply when the plaintiff’s cause of action is
posited on the act of applying for a building permit itself. (See Midland Pacific Building
Corp. v. King (2007) 157 Cal.App.4th 264, 273 (Midland Pacific).) But it has not
applied when the permitting process is not the main act giving rise to a cause of action.
(See Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 809
(Wang).)
In Wang, plaintiffs had sold parcels of property which were eventually
included in a retail development. The plaintiffs alleged their remaining parcels had been
wrongfully deprived of street access by the development, and brought claims for breach
of contract and fraud, in part because they alleged the developers had falsely represented
information in the planning permit application. (Wang, supra, 153 Cal.App.4th at pp.
793, 798.) In reversing the trial court’s grant of the defendant’s anti-SLAPP motion,
Division One of our court held the statute did not apply because the act of seeking
permits was merely incidental to the Wangs’ claims. The “overall thrust of the complaint
challenge[d] the manner in which the parties privately dealt with one another . . . and
d[id] not principally challenge the collateral activity of pursuing government approvals.”
(Id. at p. 809.)3 Moreover, our sister court observed that “[t]here is no bright line rule
that all cases involving developments and applications for public permits always involve

3 It is not clear whether the anti-SLAPP motion in Wang was directed at the entirety of the
complaint, or to specific allegations, but given the discussion in the opinion, we presume the motion was directed to
the complaint as a whole. (Id. at pp. 798, 807.)

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the type of petitioning conduct protected by the anti-SLAPP statutory scheme.” (Id. at p.
804.)
Several months after the Wang decision, the Second District Court of
Appeal addressed a similar issue in Midland Pacific. There, the defendants had agreed to
obtain city approval of a specific type of development plan for the 27 acres of property
they were selling to plaintiff. (Midland Pacific, supra, 157 Cal.App.4th at p. 267.) When
they sought approval of a different type of plan, plaintiff sued for breach of contract. (Id.
at p. 269.) The Second District found the claim was based on protected activity,
distinguishing Wang as follows: “[M]odern real estate development almost always
requires governmental permits. The anti-SLAPP statute will not protect a developer . . .
simply because the developer sought governmental permits for the activity that
constitutes the breach. The purpose of the contract in Wang was to allow Wal-Mart to
develop its property. Governmental approval was simply collateral to that purpose. [¶]
Here, in contrast, obtaining governmental approval was not collateral to the contract, it
was of the essence of the contract. It was what Midland paid the Kings to do.” (Id. at p.
273.)
This case falls somewhere between Wang and Midland Pacific. Like
Wang, the gist of the Association’s case against appellants is focused on their failure to
obtain ARC approval for their activities, whether it be the construction work or the
permits. But like Midland Pacific, appellants’ application to the city for a permit was at
least in part the subject of the agreement – by the terms of the CC&R’s, appellants were
not allowed to apply for a building permit without approval. Their protected activity was
separately actionable as a breach because it was a violation of the CC&R’s. And
importantly, appellants’ anti-SLAPP motion was not directed at the entirety of the
Association’s case, but at the specific allegation about the permit application. Therefore,
it isn’t necessary for the “overall thrust” of the complaint to challenge protected activity,

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as it was in Wang. It is sufficient for the specified allegation to involve such activity, and
it does.
Levy, Shahbazian, and Gotterba are not as instructive. Both Levy and
Shahbazian involved the building permitting process, but the anti-SLAPP motions were
filed by city entities, and neither complaint targeted the filing of an application for a
building permit.
In Levy, the City of Santa Monica filed an anti-SLAPP when a city council
member was sued for contacting planning department employees in response to a
constituent inquiry about a potentially non-conforming structure on a neighbor’s
property. (Levy, supra, 114 Cal.App.4th at p. 1254.) The Second District Court of
Appeal deemed this a protected petition for grievance against the government. (Id. at p.
1258.)
The opposite result occurred in Shahbazian. There, the City of Rancho
Palos Verdes sought to strike a lawsuit founded on its decision to issue a permit to one
neighbor while denying a permit to the other. The suit alleged the city was engaging in
discriminatory practices by selectively applying building ordinances. (Shahbazian,
supra, 17 Cal.App.5th at p. 826.) Division Seven of the Second District found the
offending conduct was not protected under section 425.16, subdivision (e) because the
plaintiffs’ “causes of action d[id] not arise from any statements, writings, or conduct in
furtherance of the [c]ity’s rights to petition or speech. Instead, they ar[o]se from the
[c]ity’s decisions to grant the [neighbors] a permit for their wall (allegedly in violation of
local laws) and to deny the [plaintiffs] a permit for their deck.” (Id. at p. 835.) Here,
there is a communication for which the appellants are being sued – their application for a
building permit.
Gotterba is even less instructive. It was not a building-related case at all,
but rather an action pertaining to the existence and enforceability of a confidentiality
provision in an employment termination agreement. In the run-up to the litigation,

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plaintiff received demand letters telling him to cease revealing information about his
employment to a national tabloid, and threatening legal action for violation of the
confidentiality provision. (Gotterba, supra, 228 Cal.App.4th at pp. 38-39.) Plaintiff
seemed unaware of the provision and filed suit for a declaratory judgment regarding the
parties’ agreement. (Id. at p. 39.) Division Six of the Second District upheld the denial
of defendant’s anti-SLAPP motion, finding any reference to the demand letters was
merely evidentiary support for the complaint, and not its basis. Rather, the basis for the
complaint was the scope of the parties’ agreement. (Id. at p. 42.)
Gotterba aptly illustrates the basis for our conclusion regarding prong one
of the analysis. As we have already intimated, the Association’s reference to appellants’
application for a building permit alleges a discrete breach of the CC&R’s itself. It is not
mere evidentiary support for a breach of the CC&R’s, it is the breach. Moreover, the
motion in Gotterba was aimed at plaintiff’s entire complaint. Because removal of
allegations regarding the protected activity would not change the fundamental nature of
the dispute – which was about contractual terms – and the motion did not seek to strike
just the allegations of protected activity (so far as we can determine), prong one was not
met. Here, we need not consider whether removal of the allegation about appellant’s
building permit application would change the nature of the dispute. The motion is
directed (in the alternative) at that specific allegation. We find appellants met their
burden to show the Association’s claims arose, at least in part, out of protected activity.
II. Did the Association meet its burden to show a probability
of prevailing on claims based on the building permit application?
“‘In order to establish a probability of prevailing on the claim (§ 425.16,
subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must “‘state [ ] and
substantiate [ ] a legally sufficient claim.’” [Citations.] Put another way, the plaintiff
“must demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the evidence

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submitted by the plaintiff is credited.” [Citations.] In deciding the question of potential
merit, the trial court considers the pleadings and evidentiary submission of both the
plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the
credibility or comparative probative strength of competing evidence, it should grant the
motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the
plaintiff’s attempt to establish evidentiary support for the claim.’ (Wilson v. Parker,
Covert & Chidester (2002) 28 Cal.4th 811, 821 []; see also Yu v. Signet Bank/Virginia
(2002) 103 Cal.App.4th 298, 317.)” (Tuchscher Development Enterprises, Inc. v. San
Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1235.) Plaintiff’s evidentiary
submissions should be competent and admissible. (Id. at p. 1236.)
The Association only submits evidence that appellants failed to submit
revised plans for approval prior to beginning their 2018 construction work, and then
obtained a permit from the city. Appellants do not seem to dispute this assertion, but
contend the Association failed to submit proper evidence of the CC&R’s and did not
show damages or an inadequate remedy at law. In our view, neither side’s briefing
adequately addresses the Association’s necessary showing.
As stated previously, the requirements in the CC&R’s may be enforced as
equitable servitudes. But because the Association seeks to compel compliance with the
CC&R’s at least partly through a mandatory injunction, there are additional requirements.
(See Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766, 771-772
(Ironwood); see also Pacific Hills Homeowners Assn. v. Prun (2008) 160 Cal.App.4th
1557, 1565-1566.) “When a homeowners’ association seeks to enforce the provisions of
its CC&R’s to compel an act by one of its member owners, it is incumbent upon it to
show that it has followed its own standards and procedures prior to pursuing such a
remedy, that those procedures were fair and reasonable and that its substantive decision
was made in good faith, and is reasonable, not arbitrary or capricious.” (Ironwood,

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supra, 178 Cal.App.3d at p. 772.) This showing was not made at all, and as a result, the
Association has not met its burden.
Instead, the Association’s evidence consists of declarations from the
president of its board of directors, Adam J. Gillman and its property manager, Janet M.
Salmon. Gillman indicates the board considered appellants’ initial conceptual renderings
in 2009 and 2019 for a two-story pool house, five-car garage, landscaping and
hardscaping work. But appellants have never submitted a full set of plans and
specifications for the work, as the Association’s board requires of all homeowners
undertaking such activities. Eight years passed and appellants never started construction,
so the Association considered the matter closed. But in October 2018, appellants began
construction of improvements “that are materially different” from those in their initial
renderings. Salmon’s declaration attaches copies of those renderings.
As appellants point out, the Association’s evidence does not include the
CC&R’s. Technically, this is true, but we find it a minor point given that the CC&R’s
are an exhibit to the complaint, and appellants have never seemed to question its
authenticity. Section 7.2 of the CC&R’s states in pertinent part as follows: “. . . [A]ny
Construction Activity involving an exterior Improvement requiring a building permit
shall first be reviewed and approved by the Architectural Review Committee prior to
requesting a building permit from the City Community Development Department.” The
CC&R’s provide in section 14.1.3 for dispute resolution procedures including judicial
reference and litigation should a homeowner violate the CC&R’s.
The complaint also attaches correspondence between the Association and
appellants. The first letter is from the Association and is dated September 21, 2009, in
which it approved appellants’ plans for a two-story pool house, five-car garage,
landscaping and hardscaping. Appellants were asked to provide “a copy of the [c]ity’s
final sign-off (if applicable)” on the improvements. On June 15, 2010, after appellants
had submitted their modified conceptual drawings, the Association sent another letter

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approving in part and denying in part the application. The letter appeared to address
aesthetic items like shape of the pool shade, trims, textures, and paint colors. It denied
many of the colors appellants had chosen, and required a resubmittal on the colors.
The 2018 work Gillman is apparently referencing seems to have been
summarized in the February 23, 2018 letter from the Association’s counsel, describing
unauthorized installation of artificial turf, backyard lighting, a shed, and the infamous
tree “mutilation.” But the building permit issued by the city on June 15, 2018, approved
a gas line, electrical lines, two gazebos, a shed, view deck and stairs, and movement of a
fence. Gillman indicates the fence referenced in the permit has to be a common area wall
owned by the Association because it “is the only fence that exists at the top of the slope
on” appellants’ lot. No permission was sought from the Association to move this fence,
and no plans or specifications were provided to the Association to assess appellants’ plan
for the fence. Moreover, Gillman says the Association was never asked to consider the
gas or electrical lines, gazebos or a view deck with stairs.
This evidence indicates appellants did not seek Association approval prior
to submitting an application for a building permit for the fence, gas and electrical lines,
gazebos, or view deck with stairs. And the CC&R’s clearly require that they do so. So
the Association has established a violation of the CC&R’s based on appellants’ applying
for an unauthorized building permit. But since the Association makes no showing on any
steps it took to follow its own dispute resolution procedures on these issues, it has not
met its prong two burden to get mandatory injunctive relief.4 Since the Association seeks
both declaratory and injunctive relief based on the building permit allegation, and
appellants’ motion pinpoints this allegation, the motion should have been granted as to
page 6 of the complaint, lines 7 through 15 only.

4 Because we find the Association’s evidence wanting as it is, we see no need to address appellants’
evidentiary objections.

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 Appellants also argue the Association’s claim based on the building permit
is barred by Civil Code section 47. Though it is unnecessary to our conclusion in the
final analysis to address this argument, we feel we must do so in order to correct what we
see as appellants’ misapprehension of the privilege. As Division One of this court
recently observed, “the litigation privilege precludes liability for damages in tort,” and
thus “does not provide a defense to a cause of action that, by its nature, does not seek to
impose tort liability for damages on a defendant based on his or her litigation related
publications.” (Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 288, 289.) This includes
“equitable claims for declaratory or injunctive relief” and enforcement of contractual
obligations in the style of the Association’s first cause of action for violation of the
CC&R’s. (Id. at pp. 288-291.)
III. Timeliness
Although we must reverse the trial court’s ruling on the anti-SLAPP
motion, we remand for its consideration a threshold question raised by the Association:
should the anti-SLAPP motion be denied as untimely? Section 425.16 provides that an
anti-SLAPP motion “may be filed within 60 days of the service of the complaint or, in
the court’s discretion, at any later time upon terms it deems proper.” (Id., subd. (f).) It is
undisputed that appellants’ motion was filed outside this time window, and the trial court
chose not to address the timeliness of the motion because it did not believe appellants had
met their prong one burden. Since we disagree with the trial court on the prong one
analysis, we remand for its consideration the timeliness issue.

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 DISPOSITION
The order denying appellants’ anti-SLAPP motion is reversed and
remanded for proceedings consistent with this opinion. Appellants to recover their costs
on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

SANCHEZ, J.

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