Filed 11/28/23 BMR Summers Ridge v. H.G. Fenton Co. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BMR-SUMMERS RIDGE LP, D081115
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2022-
00005238-CU-BT-CTL)
H.G. FENTON COMPANY et al.,
Defendants and Appellants.
APPEALS from an order of the Superior Court of San Diego County,
Katherine Bacal, Judge. Affirmed.
Duane Morris, Colin L. Pearce, Jolie-Anne S. Ansley, and Ashley
Barton for Appellants H.G. Fenton Company, Jeff Diltz, and Connie Powell.
Pettit Kohn Ingrassia Lutz and Dolin, Ryan H. Nell, and Christine Y.
Dixon for Appellant Fenton Technology Park Property Owners Association.
Latham & Watkins, John T. Ryan, Nicole C. Valco, Grant E. Strother,
Melissa Arbus Sherry, Anna M. Rathbun, and Christina R. Gay for Plaintiff
and Respondent.
H.G. Fenton Company (Fenton), Fenton Technology Park Property
Owners Association (Association), Jeff Diltz, and Connie Powell (collectively,
defendants) appeal the trial court’s order denying their special motions to
strike BMR-Summers Ridge LP’s (BMR) complaint as a strategic lawsuit
against public participation (SLAPP). Defendants contend that while the
court correctly found BMR’s claims arise from protected activity, the court
erred in finding that BMR showed a probability of succeeding on its claims.
BMR argues that the court reached the right result because its claims have
at least minimal merit. But BMR also contends that the court should have
denied the motions to strike on the ground that BMR’s claims do not arise
from activity protected by the anti-SLAPP statute. (See Code Civ. Proc.,1
§ 425.16.)
We conclude that defendants failed to meet their burden of showing
BMR’s claims arise from protected activity under section 425.16, subdivisions
(e)(1) through (e)(4), because the alleged activity: (1) did not involve an
“official proceeding”; (2) did not occur in a “public forum”; and (3) did not
contribute to any public discussion about an issue of public interest. Having
concluded that the motions to strike fall short at the first step of the anti-
SLAPP analysis, we need not reach the question of whether BMR met its
second-step burden of establishing a probability of success on the merits of its
claims. (§ 425.16, subd. (b)(1).) Accordingly, we affirm the denial of
defendants’ motions to strike.
FACTUAL AND PROCEDURAL BACKGROUND
Fenton, BMR, and Alexandria Real Estate Equities (ARE) are
competitors in the San Diego commercial real estate market. Each business
owns lots in Fenton Technology Park (Park), a large industrial area located
between two freeways in the Sorrento Mesa area of San Diego. The Park is
1 All further statutory references are to the Code of Civil Procedure
unless otherwise indicated.
2
governed by covenants, conditions, and restrictions (CCRs) which establish
the Association, a nonprofit mutual benefit corporation, as a managing body.
The CCRs provide that the Association’s members consist of the Park’s parcel
owners.
The CCRs also state that owners may use their land for “commercial or
industrial purposes” including warehousing. Before developing or
constructing improvements on their land, however, owners must submit their
plans to the Association for approval. The Association’s board, comprised of
directors from BMR, Fenton, and ARE, has the right to disapprove an
application if it is “not in accordance” with the CCRs, is incomplete, or is not
compliant with applicable governmental approvals and regulations. The
CCRs provide that the Association “shall not unreasonably withhold its
approval[.]”
In 2021, BMR agreed to sell two of its lots to Amazon for an alleged
profit of over $150 million for BMR. Amazon intended to build a facility on
those lots for storing merchandise before delivery to final destinations in San
Diego County. The agreement was contingent on receiving governmental
approvals, as well as Association approval, within a specified time period.
BMR obtained preliminary confirmation from the City of San Diego (City)
that Amazon’s anticipated use was permissible under applicable permit and
zoning requirements, and that the anticipated traffic was allowable.
BMR then submitted an application to a committee, appointed by the
Association, which considered the application during a video meeting. The
meeting was only accessible to the Park’s property manager and
representatives from ARE, BMR, and Fenton. BMR alleges that the property
manager instructed BMR’s representative to recuse herself from the meeting
before the Association deliberated and voted on the application. The
3
Association then denied the application, stating that Amazon’s proposed use
was “incompatible either with the character of [the Park] as a first class
integrated mixed use business center or with the purpose and general plan
and intent of the [CCRs].” Although BMR submitted additional information
and requested reconsideration, the Association did not change its decision,
and Amazon withdrew from its agreement with BMR shortly thereafter.
BMR filed suit in February 2022 against Fenton and the Association,
as well as Diltz (Fenton’s committee representative who voted on the
application) and Powell (Fenton’s board representative). BMR’s complaint, as
amended, asserts causes of action (COA) based on: breach of the CCRs (first
and second COAs); declaratory relief under the Nonprofit Mutual Benefit
Corporation Law (Corp. Code, § 7110, et seq., third COA); breach of fiduciary
duties (fourth COA), tortious interference with BMR’s relationship with
Amazon (fifth, sixth, and seventh COAs), breach of the implied duty of good
faith and fair dealing (eighth COA), the Cartwright Act2 (ninth COA), unfair
competition (tenth COA), and a request for other declaratory relief relating to
the denial of BMR’s application (eleventh COA).
Defendants filed anti-SLAPP motions to strike, arguing that the
allegations in BMR’s amended complaint involve all four categories of
protected activity as described in section 425.16, subdivision (e). (See
§ 425.16, subd. (e)(1)–(4).) Specifically, defendants argued that BMR was
suing them for their actions in Association meetings, which constituted
“official proceedings,” and that those actions were taken in a “public forum”
involving high-profile issues of “public interest.” Defendants also contended
2 The Cartwright Act is California’s antitrust statute. (Bus. & Prof. Code,
§ 16700 et seq.)
4
that their protected activities gave rise to BMR’s claims, and that BMR could
not demonstrate a probability of prevailing on the merits.
After considering the parties’ briefs and holding a hearing, the trial
court granted in part and denied in part defendants’ anti-SLAPP motions.
The court first found that all of BMR’s claims arose out of the Association’s
vote to deny the application, which constituted protected activity. The court
then concluded that BMR showed a probability of prevailing on each of its
claims, except as to Diltz and Powell individually for tortious interference
and Cartwright Act violations. The court therefore dismissed only those
specific claims against Diltz and Powell (fifth, sixth, seventh, and ninth
COAs), but otherwise denied defendants’ motions to strike the remaining
COAs.3 Defendants timely appealed.
DISCUSSION
Defendants ask us to reverse the court’s order denying their anti-
SLAPP motions, arguing that while the court correctly found BMR’s claims
arise from protected activity, the court erred in finding that BMR showed a
probability of succeeding on its claims. We conclude that the trial court was
correct to deny defendants’ motions, but on the basis that defendants failed to
meet their burden of showing BMR’s claims arise from protected activity.
A. Governing Law
The anti-SLAPP statute provides in relevant 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 . . . in connection with a public
issue shall be subject to a special motion to strike [anti-SLAPP motion],
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.
3 The dismissed causes of action are not at issue on appeal.
5
(b)(1).) Ruling on an anti-SLAPP motion typically involves two steps. First,
the defendant moving to strike a cause of action must show the act
underlying the claim falls within one of the four categories of protected
activity listed in section 425.16, subdivision (e). (Baral v. Schnitt (2016)
1 Cal.5th 376, 396 (Baral); Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 66 [“only means” by which a moving defendant can
satisfy section 425.16 requirements is “to demonstrate that the defendant’s
conduct by which plaintiff claims to have been injured falls within one of the
four categories described in subdivision (e) . . .”]; Bowen v. Lin (2022) 80
Cal.App.5th 155, 160 (Bowen).)
The first two categories in subdivision (e) pertain to statements or
writings made before, or in connection with, a “legislative, executive or
judicial body, or any other official proceeding . . . .” (§ 425.16, subd. (e)(1), (2),
italics added.) The third category involves statements or writings made in a
public place or forum, and the fourth category includes other conduct in
furtherance of free speech or the right to petition. (Id., subd. (e)(3), (4).) The
latter two categories both require a specific showing that the alleged action
concerns a matter of public interest, while the first two categories require
that the alleged action involve an official proceeding. (See Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117–1118.)
If the defendant makes a sufficient showing under the first prong of the
anti-SLAPP analysis, the burden shifts to the plaintiff to show the targeted
causes of action are legally sufficient and supported by evidence that, if
credited, would sustain a judgment for the plaintiff. (Baral, supra, 1 Cal.5th
at pp. 384, 396; Bowen, supra, 80 Cal.App.5th at p. 160.) “Only a cause of
action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises
from protected speech or petitioning and lacks even minimal merit—is a
6
SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten
(2002) 29 Cal.4th 82, 89 (Navellier); accord, Bowen, at p. 160.) The trial
court’s decision on both prongs is subject to de novo review on appeal. (Geiser
v. Kuhns (2022) 13 Cal.5th 1238, 1250 (Geiser); Monster Energy Co. v.
Schechter (2019) 7 Cal.5th 781, 796; Starr v. Ashbrook (2023) 87 Cal.App.5th
999, 1018.)
B. Analysis
1. Official Proceeding
BMR contends that defendants have waived any argument on appeal as
to the first category of protected speech encompassing statements made in an
“official proceeding” under section 425.16, subdivision (e)(1). While it is true
that defendants have not put forth arguments in support of subdivision
(e)(1)’s application here, we conclude that even if they had, the argument
would fail for the same reason their argument under subdivision (e)(2) falls
short. We therefore discuss the applicability of these subdivisions together.
Section 426.16, subdivision (e)(1) applies to “any written or oral
statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law.” (§ 425.16,
subd. (e)(1), italics added.) Subdivision (e)(2) applies to “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)(2), italics added.)
Contrary to what defendants argue, we conclude that the Association
meeting was not an “official proceeding” for anti-SLAPP purposes under
either subdivision (e)(1) or (e)(2). Courts have found that an action involved
an official proceeding under section 425.16 where, for example, a hospital was
required by statute to have a peer review process as part of a
7
“comprehensive” regulatory scheme governing the “overall process for the
licensure of California physicians.” (Kibler v. Northern Inyo County Local
Hospital Dist. (2006) 39 Cal.4th 192, 199 (Kibler).) In Kibler, the Supreme
Court found notable that “decisions resulting from peer review proceedings
are subject to judicial review by administrative mandate. [Citation.]” (Id. at
p. 200.)
Similarly, in Fontani v. Wells Fargo Investments, LLC (2005) 129
Cal.App.4th 719 (Fontani), a plaintiff sued his former employer based on
statements the employer made to the National Association of Securities
Dealers (NASD) about the reasons for his termination. (Id. at p. 725.) The
Court of Appeal concluded that the NASD proceeding was an “official
proceeding” for purposes of section 425.16 because “the NASD exercises
governmental power” as “ ‘the primary regulatory body for the broker-dealer
industry’ and thus performs uniquely regulatory functions typically
performed by a governmental regulatory agency. [Citations.]” (Id. at p. 729.)
Here, unlike the governing bodies in Kibler and Fontani, the
Association does not function within a larger regulatory scheme governing a
profession or industry at large, nor are its decisions reviewable by
administrative mandate. (See Talega Maintenance Corp. v. Standard Pacific
Corp. (2014) 225 Cal.App.4th 722, 732 (Talega) [distinguishing homeowners
association (HOA) on similar grounds].) According to the CCRs, the
Association consists only of a few parcel owners in the Park, and its
responsibilities are narrowly limited to internal matters like maintaining
common areas, levying assessments from owners, and enforcing internal
regulations. Although courts have recognized similarities between an HOA
and a local government in finding that an activity involved an official
proceeding, the Association has no strong connection to governmental
8
proceedings and “is not performing or assisting in the performance of the
actual government’s duties, as was the case in Kibler and Fontani.” (Talega,
at p. 732.)
Donovan v. Dan Murphy Foundation (2012) 204 Cal.App.4th 1500
(Donovan) leads us to the same conclusion. In Donovan, a former board
member of a nonprofit charitable organization sued the organization and
current board members for wrongful removal. (Id. at pp. 1502–1503.) The
defendants contended the board meeting during which the plaintiff was
removed was an official proceeding because “board of directors meetings and
majority voting are authorized under the Corporations Code[.]” (Id. at
p. 1508.) The Court of Appeal in Donovan disagreed, noting that while board
meetings are authorized by statute, “the actual procedures are left to the
private organizations” and the board’s decisions are still not reviewable by
administrative mandate. (Ibid.; cf. Olaes v. Nationwide Mutual Ins. Co.
(2006) 135 Cal.App.4th 1501, 1508 [private company’s sexual harassment
grievance protocol not an official proceeding].)
Defendants rely on Damon v. Ocean Hills Journalism Club (2000) 85
Cal.App.4th 468 (Damon) to argue that the Association functions like “a little
democratic subsociety” which is, in effect, “a quasi-government entity
paralleling in almost every case the powers, duties, and responsibilities of a
municipal government.” (Damon, at p. 475.) But in Damon, our court
decided the alleged activity fell within section 425.16, subdivision (e)(3) on
“public forum” and “public interest” grounds, expressly noting that doing so
“render[ed] it unnecessary for [our court] to consider the issue of whether the
alleged defamatory statements come under section 425.16, subdivision (e)(1)
or (2).” (Damon, at p. 474, fn. 3.)
9
As the Talega court noted, “multiple cases have addressed anti-SLAPP
motions arising from statements at [HOA] board meetings,” and those cases
have generally “analyzed the case under the rubric of subdivision (e)(3) or
(4).” (Talega, supra, 225 Cal.App.4th at p. 732, citing Silk v. Feldman (2012)
208 Cal.App.4th 547, 553–554 [statements disseminated to numerous HOA
members fell within subdivision (e)(3) or (e)(4)]; Cabrera v. Alam (2011) 197
Cal.App.4th 1077, 1087–1088 [HOA meeting accessible to hundreds of
homeowners constituted a “public forum” under subdivision (e)(3)]; Damon,
supra, 85 Cal.App.4th at p. 474; see also Lee v. Silveira (2016) 6 Cal.App.5th
527, 539–540 (Silveira) [noting HOA’s “quasi-government” characteristics in
the context of subdivision (e)(3)].) Our conclusion that the Association
meeting was not an official proceeding falling within section 425.16,
subdivisions (e)(1) and (e)(2), is therefore consistent with the approach taken
in those cases.
Moreover, as noted in Donovan, a small nonprofit organization like the
Association is not a quasi-governmental entity in the way that an HOA for a
3,000-resident community might be, as was the case in Damon. (Donovan,
supra, 204 Cal.App.4th at p. 1507, fn. 3; Damon, supra, 85 Cal.App.4th at
p. 476.) The association in Damon had an annual budget exceeding
$3 million, employed approximately 60 people, and made decisions impacting
over 1,600 homes, a golf course, and other recreational facilities. (Damon, at
pp. 471–472.) In contrast, the record here shows that the four-member
Association’s decision-making is largely limited to matters within the Park,
impacting only the few private businesses that own lots there. The
Association’s smaller size and scope make its proceedings less “closely linked
to any governmental, administrative, or judicial proceedings or regulation[.]”
(Garretson v. Post (2007) 156 Cal.App.4th 1508, 1521.)
10
Accordingly, we conclude BMR’s claims do not concern a statement
made before or in connection with an “official proceeding” under section
425.16, subdivision (e)(1) or (e)(2).
2. Public Forum
We turn next to whether BMR’s allegations fit into the third category of
protected activity under section 425.16, subdivision (e)(3), which requires
that the statements at issue be “made in a place open to the public or a public
forum in connection with an issue of public interest[.]” We conclude that the
alleged acts do not fall in this category because the Association’s denial of
BMR’s application did not occur in a public place or forum.
A public forum is typically defined as a place that is open and
accessible to the general public “ ‘ “for purposes of assembly, communicating
thoughts between citizens, and discussing public questions.” ’ [Citations.]
Means of communication where access is selective . . . are not public forums.
[Citation.]” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130; see also
Clark v. Burleigh (1992) 4 Cal.4th 474, 482.) Here, to vote on the application,
the Association convened a private meeting with four participants who could
only access the meeting using a link sent to each of them. Access to the
meeting was clearly selective, and there is no evidence in the record that the
meeting was open to anyone outside of those four members.
Defendants rely on Damon again because in that case, our court
concluded that an HOA meeting constituted a public forum under section
425.16, subdivision (e)(3). Damon, however, is distinguishable because it
involved a residential HOA, and the HOA board meeting in that case was
televised, accessible to thousands of residents, and open to all interested
parties. (Damon, supra, 85 Cal.App.4th at p. 475.) The HOA’s board “served
a function similar to that of a governmental body”; its powers “extend[ed] to
11
life within ‘the confines of the home itself’ ”; and it “played a critical role in
making and enforcing rules affecting the daily lives of [the] residents.” (Ibid.)
The court noted that “[b]ecause of a homeowners association board’s broad
powers and the number of individuals potentially affected by a board’s
actions, the Legislature has mandated that boards hold open meetings and
allow the members to speak publicly at the meetings. [Citations.] These
provisions parallel California’s open meeting laws regulating government
officials, agencies and boards. [Citations.]” (Ibid.)
This stands in stark contrast to the private meeting of the four
members of a purely commercial common interest development at issue here.
The board of a commercial common interest development does not govern the
life of a residential community in a manner similar to a municipality or other
governmental body. Instead, it functions more like the board of a private
corporation to serve the owners’ commercial interests. Moreover, Fenton
points to no laws requiring that purely commercial common interest
developments comply with open meeting laws in the same way that a
residential HOA must. (Compare Civ. Code, § 6500 et seq. [Commercial and
Industrial Common Interest Development Act] with Civ. Code, § 4000 et seq.
[Davis-Stirling Act governing residential and mixed-use common interest
developments].) Thus, Damon does not support Fenton’s public-forum
argument.
Defendants also rely on Ruiz v. Harbor View Community Association
(2005) 134 Cal.App.4th 1456, but that case was decided based on section
425.16, subdivision (e)(4), and did not address the “public forum” requirement
in subdivision (e)(3). (Ruiz, at pp. 1461, 1469, fn. 5.)
12
Accordingly, because the record shows the Association meeting was not
a public forum, we conclude that actions or statements made at the meeting
did not constitute protected activity under section 425.16, subdivision (e)(3).
3. Public Discussion
Next, we consider whether the acts alleged in BMR’s complaint fall
within the fourth “catchall” category of protected activity under section
425.16, subdivision (e)(4). Subdivision (e)(4) includes “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)(4).) Our Supreme Court has
held that this category calls for a two-part analysis. (FilmOn.com Inc. v.
DoubleVerify Inc. (2019) 7 Cal.5th 133, 149 (FilmOn); Geiser, supra, 13
Cal.5th at p. 1243.) First, “we ask what public issue or issues the challenged
activity implicates, and second, we ask whether the challenged activity
contributes to public discussion of any such issue. [Citation.]” (Geiser, at
p. 1243.) As the Court explained in FilmOn, the second step, not the first,
“usually plays the more prominent role in screening anti-SLAPP motions
because caselaw ‘demonstrate[s] that virtually always, defendants succeed in
drawing a line — however tenuous — connecting their speech to an abstract
issue of public interest.’ [Citation.]” (Id. at p. 1250.) “And where the first
step is satisfied, it performs an important function in the inquiry: It operates
as a lens that focuses the analysis at the second step.” (Ibid.)
The anti-SLAPP statute does not define “public issue” or “issue of
public interest,” but the Supreme Court has stated that the first step in the
subdivision (e)(4) analysis is satisfied “so long as the challenged speech or
conduct, considered in light of its context, may reasonably be understood to
implicate a public issue, even if it also implicates a private dispute.” (Geiser,
13
supra, 13 Cal.5th at p. 1253; § 425.16, subd. (e)(4).) This broad definition of
“public interest” arguably encompasses a decision about whether a private
association should allow the development of a large-scale Amazon
distribution center, even though defendants provide little evidence regarding
its implications for communities beyond the Park. Defendants rely primarily
on instances of public opposition to Amazon facilities in other locations to
argue that the same community opposition could arise here.
We are mindful that “[c]ourts have generally rejected attempts to
abstractly generalize an issue in order to bring it within the scope of the anti-
SLAPP statute.” (Talega, supra, 225 Cal.App.4th at p. 733.) Moreover, the
context of the activity here, which the Supreme Court noted is relevant in
this first-step analysis, further separates this situation from the other
instances of public opposition referenced by defendants. (See Geiser, supra,
13 Cal.5th at p. 1252 [context matters in both steps of the “catchall” inquiry].)
For example, while one of the other two Amazon facilities was near several
residential communities with limited barriers to mitigate light and sound
pollution, the Park is in a large industrial area between two freeways. The
second Amazon facility referred to by defendants was planned for a former
church site and became the subject of a lawsuit brought by unions,
environmental advocates, and nearby residents. In contrast, there is little
evidence indicating that similar suits would necessarily arise in this context,
given the industrial nature of the area and the fact that shipping and
distribution companies already operate in the area.
There are thus fewer “indicators that the [activity] implicated public
issues” here (Geiser, supra, 13 Cal.5th at p. 1251), especially because the
Association’s stated reasons for denying the application were tied to the
“character” of the Park itself, not the community surrounding the Park or the
14
public at large. (See Donovan, supra, 204 Cal.App.4th at pp. 1506–1509
[disputes among foundation directors over corporate governance not protected
activity: “[T]he fact that the Foundation is one of the largest charitable
organizations in Southern California, subject to public oversight by the
Attorney General, and that it donates a substantial amount of money every
year to persons and entities that affect millions of Southern
Californians . . . [does not] transform a private disagreement among directors
of the Foundation into a public issue”].) The dispute’s private nature is
further evidenced in a March 2022 letter Fenton addressed to the City, which
focused almost exclusively on the development’s potential impact on the
Park’s “business environment” and on “owners’ expectations,” with no real
discussion of how the facility could impact the community outside of the
Park.
Given the Supreme Court’s broad definition of “public interest,”
however, we will assume that the development of an Amazon distribution
center at this location does implicate an issue of public interest under the
first FilmOn step. We nevertheless conclude that the conduct challenged in
this lawsuit does not satisfy the second FilmOn step under section 425.16,
subdivision (e)(4), because defendants have failed to show that it contributed
to any discernible “public discussion” of the issue. (See Geiser, supra, 13
Cal.5th at p. 1243.) Defendants point to no evidence that there was public
discourse concerning BMR’s application, or this particular proposed facility,
when the Association made its decision. Unlike in the cases defendants cite,
there is no evidence that BMR’s application had generated any public
meetings, petitions, letters, or other engagement from the community. (See
Golden Eagle Land Inv., L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th
399, 417 [record included petitions signed by 130 residents, letters from
15
neighboring HOAs opposing the development at issue, and declaration that
project generated significant public interest, “including at public meetings”];
Tuchscher Dev. Enters., Inc. v. San Diego Unified Port Dist. (2003) 106
Cal.App.4th 1219, 1233–1234 [record showed project was “publicly noticed
and agendized on four separate occasions”; developer “conducted numerous
public forums with government agencies, local community groups, and
individuals, as well as organized meetings with various environmental and
habitat organizations”].)
Defendants also make no argument as to how the Association’s decision
would have contributed to any public discourse, even if such discourse
existed. It is not sufficient that the speech merely “ ‘refer to a subject of
widespread public interest; the statement must in some manner itself
contribute to the public debate.’ ” (FilmOn, supra, 7 Cal.5th at p. 150, italics
added, citing Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898.) In contrast
to the facts in Geiser, the evidence here does not show the Association’s vote
helped “draw attention” to any implicated public issues, such as the facility’s
potential environmental or traffic impacts on communities outside of the
Park. (See Geiser, supra, 13 Cal.5th at p. 1255 [protest “served to draw
attention to the alleged unfairness” of business practices].) Nor does the
evidence show the denial had any “functional relationship” with a public
issue extending beyond the Association’s private dispute with BMR, because
as noted, even the reasons cited for the denial were limited to the facility’s
impact on the Park itself. (See id. at p. 1246.)
Accordingly, we conclude that the Association’s alleged actions did not
contribute to public discussion of a public issue, and thus do not constitute
protected activity under section 425.16, subdivision (e)(4).
16
Our conclusion that BMR’s claims did not involve any categories of
protected activity means its claims were not subject to being stricken under
the statute. (Navellier, supra, 29 Cal.4th at p. 89; Verceles v. Los Angeles
Unified School Dist. (2021) 63 Cal.App.5th 776, 784.) We thus need not, and
do not, consider whether BMR established a probability of prevailing on its
claims.4 (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80–81; Turner
v. Vista Pointe Ridge Homeowners Assn. (2009) 180 Cal.App.4th 676, 688.)
DISPOSITION
The order denying the anti-SLAPP motions is affirmed. BMR shall
recover its costs on appeal.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P.J.
DO, J.
4 We also do not decide whether BMR’s claims could be characterized as
“arising from” any theoretical protected activity, or whether such activity was
“ ‘merely incidental’ to the gravamen” of BMR’s complaint. (Silveira, supra, 6
Cal.App.5th at p. 543, quoting Talega, supra, 225 Cal.App.4th at p. 730.)
17