The opinion
Filed 11/15/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
ALLISON J. LITTLEFIELD,
Plaintiff and Appellant
A167764
v.
SCOTT LITTLEFIELD et al., (San Mateo County Super.
Ct. No. 22PRO01233)
Defendants and Appellants.
Scott Littlefield, David Littlefield, and Denise Sobel (collectively,
appellants) appeal from the court’s order denying their special motion to
strike under Code of Civil Procedure1 section 425.16 (the anti-SLAPP law).
Like the trial court, we conclude that appellants have failed to satisfy their
burden of showing that Allison Littlefield’s petition arises from protected
activity. We affirm the trial court’s order denying appellants’ anti-SLAPP
motion.
Allison2 cross-appealed from the trial court’s order insofar as it denied
her request for attorney’s fees under section 425.16, subdivision (c)(1)
(section 425.16(c)(1)). We agree with her that the anti-SLAPP motion was
frivolous and therefore that the trial court abused its discretion in denying
1 All further statutory references are to the Code of Civil Procedure
unless otherwise specified.
2 Because several of the parties in this appeal share the same last
name, we will use their first names when we refer to them individually. No
disrespect is intended.
the request. We reverse that portion of the order and remand for a
determination of the appropriate award.
BACKGROUND
The Petition
The parties to this dispute are co-trustees of The Pony Tracks Ranch
Trust (the Trust) and its three sub-trusts. David and Scott are Allison’s
brothers, and Denise Sobel is Allison’s aunt. Allison filed a verified petition
alleging “request[s] for relief” for: (1) removal of appellants as co-trustees
under Probate Code section 15642; (2) breach of fiduciary duty; and
(3) breach of the Trust.3 The petition also included a “cause of action” for
declaratory and injunctive relief.
The petition alleged that Jacques Littlefield, the father of Allison,
David, and Scott, created the Trust “to acquire and retain for the collective
benefit of [his] descendants” the real property known as Pony Tracks Ranch
(the Ranch). The Trust allowed Jacques’ descendants to use and occupy the
Ranch rent free, to live in any of the buildings on the property, to keep
animals there, and to use the property for parties, hunting, hiking, and
camping. Jacques’ descendants were also to “work together in a spirit of
family and cooperation in resolving any disputes about the acquisition, use,
ownership and sale of the Ranch.”
The Ranch is owned by Pony Tracks Ranch LLC (the LLC). The three
sub-trusts are members of the LLC, and the LLC is managed by a board of
managers (the board). Each of the parties to this dispute was initially named
as a member of the board in his or her individual capacity. The LLC’s
purpose is to acquire, own, operate, finance, refinance, and hold the Ranch.
3 Notwithstanding the labels in the petition, we will refer to these
“requests for relief” as “causes of action.”
2
At various times over the years, Allison oversaw Ranch operations.
In 2020, Allison resumed an active role in supervising Ranch operations, and
the LLC simultaneously employed Stacey Limbada full time to manage the
Ranch. For unknown reasons, Limbada resisted Allison’s efforts to supervise
Ranch operations and allegedly “began a campaign against [Allison] and
[Allison’s husband, Hiruy Amanuel].” Limbada committed numerous acts of
“misconduct,” including refusing to do simple tasks for Allison, accusing
Amanuel of crashing an ATV, taking too long to do requested work and not
finishing work, falsely accusing Allison of leaving a mess at the Ranch,
denying receipt of a key card sign-out sheet, and refusing to arrange for
Allison to use a van owned by the Ranch. Appellants did nothing to prevent
Limbada’s misconduct and insubordinate behavior.
In January 2021, Limbada encountered Amanuel at the Ranch, began
yelling, threatened to call the police, and accused Amanuel of threatening her
with a weapon when he was unarmed. Amanuel informed David about the
incident, and Allison asked appellants to protect her husband. Appellants
did not ask Amanuel what happened, and, when they responded, they
accused Amanuel of bullying Limbada and said the LLC had an affirmative
obligation to ensure Limbada was not subject to harassment and bullying.
The petition included additional allegations regarding Limbada,
including that she asked numerous questions to the LLC’s attorney about
Amanuel’s past in a perceived effort to “ ‘dig up dirt;’ ” she made false
accusations against Allison and called for Allison’s removal from the board;
she engaged in wrongful employment practices with LLC employees and
subjected the LLC to lawsuits on that basis; she complained about Allison
visiting the Ranch and used the Ranch security system to eavesdrop on
3
Allison and Amanuel; and she falsely accused Amanuel of posting an
allegedly defamatory and harassing letter about her online.
Regarding appellants, Allison alleged that they hired legal counsel for
themselves and improperly used Trust assets to pay for the expenses. They
ignored Allison’s request for budgetary information about repairs on the
Ranch. Appellants did not stop Limbada from engaging in wrongful
employment practices with LLC employees or from using the Ranch security
system to eavesdrop on Allison and her family. They refused to hire
attorneys that Allison suggested for certain matters. They limited Allison’s
use of the Ranch and practically prevented her use entirely. They banned
Amanuel from the Ranch because of Limbada’s accusation about the letter
posted online. They converted Allison’s personal property. Finally, they
wrongfully removed Allison from the board and thereafter cut off her access
to the Ranch’s security systems.
The petition’s first cause of action sought removal of appellants as co-
trustees because of their alleged breach of the Trust (described below), and
their failure and declination to act in a manner consistent with their duties
and obligations “including but not limited to the duty to properly manage the
LLC and the Trust; to treat [Allison] fairly, equally and in good faith; to not
to infringe or otherwise compromise [Allison’s] right to use the Ranch,
including the right for [Allison] to enjoy the Ranch with her family, including
her husband.” Allison also sought removal of the co-trustees based on
hostility and lack of cooperation, and she alleged that there was “no rationale
for how [appellants] could possibly fulfill their fiduciary duties by continuing
to employ an employee so openly hostile to [Allison] and her husband.”
The second cause of action alleged that appellants breached fiduciary
duties to Allison by: (1) failing to treat her with complete fairness; (2) failing
4
to treat her with the highest duty of loyalty; (3) failing to disclose to her all
material facts about the Trust’s affairs and property; 4) failing to treat her in
the same manner as the other Trust beneficiaries; (5) failing to refrain from
conducting themselves in any manner that was against Allison’s best
interests; (6) failing to refrain from deception, concealment or nondisclosure
of material facts, misconduct and mismanagement; and (7) treating Allison
unequally, unfairly and in a harassing manner.
The third cause of action alleged breach of Trust provisions forbidding
the Trust from selling, leasing, or otherwise making the Ranch “unavailable
for the use of the trust beneficiaries;” requiring appellants to manage the
Ranch in good faith and for the benefit of Jacques’ descendants equally;
requiring Jacques’ children to “ ‘work together in a spirit of family and
cooperation in resolving any disputes about the acquisition, use, ownership
and sale of [the Ranch];’ ” and naming Jacques’ descendants as the sole
beneficiaries of the Trust. Additionally, appellants “engaged in a pattern of
harassment, retaliation and unequal treatment of [Allison] and her family
that has resulted in [Allison] being terminated as a Manager of the LLC and
in her and her young children being effectively barred from the Ranch by
banning Mr. Amanuel from being at the Ranch, as well as other
infringements of [Allison’s] rights to use and enjoy the Ranch.” As relief,
Allison requested that the court set aside and/or enjoin Amanuel’s ban and
enjoin Allison’s removal from the board.
The final cause of action sought “a judicial determination and
declaration of the parties’ rights and duties under the Trust.” Allison
specifically sought judicial determinations that the Trust precluded
appellants from barring Amanuel from using the Ranch when Allison was
present; restricting Allison’s use of the Ranch and prohibiting her from using
5
the Ranch as other beneficiaries are permitted; removing her from the board;
and permitting LLC employees to “harass, disparage, insult, offend or defame
[Allison]” or to obtain an agreement with the LLC that it would restrict
Allison or Amanuel from using the Ranch.
Each cause of action incorporated the petition’s factual allegations. In
the prayer for relief, Allison sought, among other things, to enjoin appellants
from “harassing, disparaging or defaming [her], or from permitting any
employees or other agents of the LLC from doing so.” Allison made the same
request in the relief she sought for breach of fiduciary duty, and in the cause
of action for declaratory relief, she similarly sought a determination that
appellants “are not authorized to permit LLC employees such as
Ms. Limbada to (i) harass, disparage, insult, offend or defame Petitioner.”
The Anti-SLAPP Motion
Appellants filed a motion to strike the petition under section 425.16
(the motion). Their notice of motion stated that they sought to strike the
petition “in its entirety, or in the alternative, to strike” all causes of action
and the prayer for relief.
In the argument section of their motion, appellants cited Allison’s
request for an injunction and maintained that the petition implicated free
speech because Allison sought to “ ‘enjoin’ ” them “ ‘from harassing,
disparaging or defaming [her], or from permitting any employees or other
agents of the LLC from doing so,’ ” and she sought an order restraining
appellants’ speech in response to the issue of gun violence at work.
Appellants argued that the anti-SLAPP statute applied because “the speech
that [Allison] asks to be restricted—the [appellants’] deliberation in response
to an employee[’s] concerns of guns in the workplace—involves an issue of
public interest.”
6
Appellants filed declarations from Limbada and Scott in support of
their motion. Limbada relayed that she began working for Allison in 2016
and thereafter told Allison and Amanuel that she no longer wanted to work
for them because she feared Amanuel was engaged in illegal activity.
Limbada began working for the LLC in 2017. She described a confrontation
between Amanuel and an employee of the LLC in December 2020 in which
Amanuel, armed with a gun, took the employee to a house on the Ranch and
placed the gun on the counter while talking to the employee. Limbada
reviewed security footage showing Amanuel with a gun, and she sent a photo
of that footage to the board. In January 2021, Limbada observed bullet holes
in a Ranch building, and she observed gun casings in another building in
August 2021. She concluded that Amanuel had been discharging firearms at
the Ranch, and she reported this to the board.
Scott described learning of the animosity between Amanuel and Allison
and Limbada and events that ensued. In April 2021, Limbada told Scott that
Allison and Amanuel sent her a demand letter threatening litigation.
Limbada requested that the LLC indemnify her for the cost of her defense
under Labor Code section 2802, and the LLC did so. In September 2021,
Allison and Amanuel sent a letter demanding that the LLC investigate
Limbada’s employment misconduct. The LLC investigated through counsel.
After the investigation began, the board learned about a fake news website
regarding Limbada that published the demand letter that Allison and
Amanuel had sent to her. Considering the limited access to the demand
letter, the board suspected Allison or Amanuel had created the website.
After conducting an investigation of Allison’s allegations against Limbada,
counsel concluded that Limbada had strong employment claims against the
LLC considering Amanuel’s conduct (including his use of firearms at the
7
Ranch) and cautioned against subjecting Limbada to any adverse
employment actions. Then, in May 2022, Limbada’s attorney sent a letter to
the LLC seeking to recover damages for Allison’s and Amanuel’s conduct.
The LLC settled the dispute and removed Allison from the board as a
condition of settlement. That same month, the board voted to suspend
Amanuel from the Ranch, and the board later voted to remove Allison from
the board.
Allison opposed the motion, arguing that the action was about the
misconduct of trustees managing private property. With respect to the first
step of the anti-SLAPP analysis, Allison argued that appellants failed to
satisfy their burden of identifying acts that were protected or causes of action
arising from protected activity under section 425.16. She sought attorney’s
fees on the ground that the motion was frivolous. Allison filed six
declarations including a declaration from her counsel stating that, among
other things, appellants had refused Allison’s offer to withdraw the requests
for relief that appellants appeared to target in their motion.
The Trial Court’s Ruling
After a hearing, the court denied appellants’ motion. The court’s
written order states as follows: “Here, [appellants] failed to identify all
allegations of protected activity that relate to what appears to be the relevant
claim a request for the Court to grant injunctive relief to enjoin [appellants]
from harassing, disparaging or defaming [Allison], or from permitting any
employees or other agents of the LLC from doing so. Further, [appellants]
fail to state the elements of the challenged claim and identify what actions by
the [appellants] supply those elements and form the basis for liability. [¶]
Even if the only allegations relevant to the claim relate to speech concerning
the brandishing of a gun at the [Ranch], [appellants] fail to show that this is
8
a protected activity under the category of public interest pursuant to
[section 425.16, subdivision (e)(4)] because the allegations concern the
speaker and a small, specific audience, it did not involve a public figure, and
it was not covered by the news.”
Regarding Allison’s request for attorney’s fees, the court orally stated,
“In terms of the issue of whether or not fees are appropriate . . . the court has
to determine in awarding fees that the motion was frivolous or solely
intended to cause unnecessary delay. I would note this complaint, and the
prayers for relief and specifically in the fourth cause of action for declaratory
and injunctive relief[,] was drafted very broadly in terms of the relief being
sought. It wasn’t just about defamation or harassment, which are terms of
art in the law that the court can enjoin. We got to disparaging, we got to
insulting, and that there were, had . . . the respondent in this case chosen to
try to articulate them, some of the portions of the complaint that relied on
actions that were taken by employees of the LLC in terms of speaking about
things that might be protected conduct. [¶] I don’t find that this was a
frivolous motion. I don’t find that it was solely intended to cause delay. And
I don’t find that it meets the standards for attorney fees as sanctions. And
that is the reason that the court denied those attorneys fees in the tentative
and continues to deny them.” The subsequent written order stated, “The
Court does not find that the motion is frivolous or is solely intended to cause
unnecessary delay.”
Appellants appealed the court’s denial of their motion, and Allison
cross-appealed the court’s denial of her request for attorney’s fees.
9
DISCUSSION
I. The Anti-SLAPP Motion
A. General Principles and Standard of Review
The anti-SLAPP statute helps “combat lawsuits designed to chill the
exercise of free speech and petition rights.” (Park v. Board of Trustees of
California State University (2017) 2 Cal.5th 1057, 1060 (Park v. Board of
Trustees).) “Anti-SLAPP procedure involves two steps. First, the moving
defendant has the burden of establishing that the lawsuit’s claims are based
on activity protected by the statute. [Citation.] If the defendant satisfies
that step, the burden shifts to the plaintiff to demonstrate under a second
step that each challenged claim based on protected activity is legally
sufficient and factually substantiated. (Nirschl v. Schiller (2023)
91 Cal.App.5th 386, 400 (Nirschl).) We resolve this appeal at the first step,
so need not discuss the second.
“The first anti-SLAPP step addresses whether a claim ‘arises from
protected activity.’ [Citation.] . . . [A] claim ‘arises from protected activity’
when ‘protected activity’ forms a basis for the defendant’s liability.
[Citation.] ‘Protected activity,’ in turn, is statutorily defined. ‘The only
means specified in section 425.16 by which a moving defendant can satisfy
the [“arising from”] requirement is to demonstrate that the defendant’s
conduct by which plaintiff claims to have been injured falls within one of the
four categories described in subdivision (e).’ ” (Nirschl, supra, 91 Cal.App.5th
at p. 400.) Appellants here invoke section 425.16, subdivision (e)(4), which
protects “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.”
10
We review the trial court’s decision to grant or deny an anti-SLAPP
motion de novo. (Nirschl, supra, 91 Cal.App.5th at p. 400.)
B. Appellants Did Not Meet Their Burden at the First Step
This lawsuit is a dispute about co-trustees’ obligations to each other.
The petition alleges a long litany of acts and omissions by the appellants as
factual predicates for its claims. To recap just some of them, there are
allegations regarding the appellants’ misuse of Trust funds, their
concealment of information, their conversion of Allison’s personal property,
their decision to remove her from the board, their disregard of her
suggestions and inquiries regarding the management of the LLC, their
imposition of restrictions on her and her husband’s use of the Ranch, and
their failures to respond to an array of alleged misconduct by Limbada. The
relief the petition seeks is as varied as the conduct of which it complains.
Among other things, it asks for the appellants’ removal as co-trustees and an
order preventing them from serving as Managers of the LLC, the return of
Trust funds, the lifting of the restrictions on Allison’s and her husband’s use
of the Ranch, Allison’s reinstatement as a Manager of the LLC, and an order
enjoining the appellants from harassing, disparaging, or defaming Allison or
from allowing employes or agents of the LLC to do so.
Notwithstanding the diverse range of allegations and requests for
relief, appellants moved to strike the petition altogether, or alternatively—
although it is not in any meaningful sense an “alternative”—every cause of
action in its entirety. In an understated concession relegated to a footnote of
their trial court briefing, appellants did acknowledge that “not everything in
the Petition involves protected activity.” Citing Haight Ashbury Free Clinics,
Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1551,
however, they contended that a “mixed” cause of action is subject to an anti-
11
SLAPP motion as long as at least one of the underlying acts is protected
conduct. As appellants should have known, the law had evolved beyond
Haight Ashbury long before they filed their motion.
In Baral v. Schnitt (2016) 1 Cal.5th 376, 394–396, the California
Supreme Court held that an allegation-by-allegation approach is necessary in
cases involving mixed causes of action. “At the first step, the moving
defendant bears the burden of identifying all allegations of protected activity,
and the claims for relief supported by them.” (Id. at p. 396.) In Bonni v. St.
Joseph Health System (2021) 11 Cal.5th 995 (Bonni), the court addressed the
proper approach when a single cause of action rests on multiple factual bases,
some of which constitute protected activity and some of which do not, and the
motion seeks to strike the entire cause of action. The court wrote: “[T]o the
extent [plaintiff] has alleged various acts as a basis for relief and not merely
as background, each act or set of acts must be analyzed separately under the
usual two-step anti-SLAPP framework. The [defendants] bear the burden of
showing that each allegation supporting [plaintiff’s] claim of recovery is one
that rests on protected activity. If the [defendants] carry that burden,
[plaintiff] will then need to demonstrate some merit to his claim that those
protected acts were taken for impermissible retaliatory reasons; if he cannot,
those particular allegations will be stricken. Conversely, to the extent any
acts are unprotected, the claims based on those acts will survive.” (Id. at
p. 1012.) Appellants’ motion, however, did not identify any “particular
allegations” of protected activity that they contended should be stricken. And
since they did not show that the petition or any entire cause of action was
based solely on protected activity, they did not show that the court could
properly strike the petition or all of its causes of action—the only relief they
sought.
12
Appellants contend that they did identify all allegations of protected
activity, and the claims for relief that supported them, because their motion
identified the page and line numbers they sought to strike. But those pages
and line numbers simply correspond to the prayer for relief and all four
causes of action in their entirety. If there are any specific factual allegations
of protected activity in the petition—as we discuss below, even on appeal
appellants have not established that there are—the motion did not identify
those allegations and explain how they furnished a basis for liability.
Appellants also argue that it is the court’s obligation, not theirs, to
determine the elements of the challenged claim and what actions by the
defendant supply those elements. They point to the following statement in
Park v. Board of Trustees: “[I]n ruling on an anti-SLAPP motion, courts
should consider the elements of the challenged claim and what actions by the
defendant supply those elements and consequently form the basis for
liability.” (Park v. Board of Trustees, supra, 2 Cal.5th at p. 1063.)
This argument is meritless. Putting aside that litigants who want
courts to consider something are generally expected to identify it, appellants’
contention is inconsistent with decisions by the California Supreme Court
squarely placing the burden on the moving party. (See, e.g., Wilson v. Cable
News Network, Inc. (2019) 7 Cal.5th 871, 887 (Wilson) [“At the first step of
the analysis, the defendant must make two related showings. Comparing its
statements and conduct against the statute, it must demonstrate activity
qualifying for protection. [Citation.] And comparing that protected activity
against the complaint, it must also demonstrate that the activity supplies one
or more elements of a plaintiff’s claims”]; Bonni, supra, 11 Cal.5th at p. 1011
[“If a cause of action contains multiple claims and a moving party fails to
13
identify how the speech or conduct underlying some of those claims is
protected activity, it will not carry its first-step burden as to those claims”].)
Moreover, months before appellants filed their opening brief, our
colleagues in the Second District held that, where the defendants moved to
strike the entire complaint “and did not identify in their motion individual
claims or allegations that should be stricken even if the entire complaint
were not, the trial court was permitted to deny the anti-SLAPP motion once
it concluded—correctly—that the complaint presented at least one claim that
did not arise from anti-SLAPP protected conduct.” (Park v. Nazari (2023)
93 Cal.App.5th 1099, 1106.) We reached a similar conclusion in Young v.
Midland Funding LLC (2023) 91 Cal.App.5th 63, 100 (Young)), which
involved a conclusory Baral motion stated in the alternative. We even went
so far in Young as to outline what movants should specifically identify to bear
their initial burden in making requests for allegation-by-allegation Baral-
style relief. (Id. at p. 100, fn. 15).
These cases control the outcome here. Although appellants moved “in
the alternative” to strike all causes of action in their entirety, they did not
show that the petition or any cause of action asserted in it was based solely
on protected activity, and they did not identify individual allegations or
claims that they believed should be stricken even if the petition or entire
causes of action were not. The trial court therefore permissibly denied their
motion.
II. Attorney’s Fees
Allison cross-appealed the court’s denial of her request for attorney’s
fees under section 425.16(c)(1). We address her contentions that the court’s
order should be reversed because the court used the wrong legal standard
and because the motion was frivolous.
14
A. Governing Principles and Standard of Review
Under section 425.16(c)(1), “[i]f the court finds that a special motion to
strike is frivolous or is solely intended to cause unnecessary delay, the court
shall award costs and reasonable attorney’s fees to a plaintiff prevailing on
the motion, pursuant to [s]ection 128.5.” “A determination of frivolousness
requires a finding the anti-SLAPP ‘motion is “totally and completely without
merit” (§ 128.5, subd. (b)(2)), that is, “any reasonable attorney would agree
such motion is totally devoid of merit.” ’ ” (Moore v. Shaw (2004)
116 Cal.App.4th 182, 199, italics omitted.) The court must impose sanctions
for a frivolous anti-SLAPP motion.4 (Id. at pp. 198–199.)
We review the trial court’s denial of Allison’s request for attorney’s fees
for abuse of discretion. (Moore v. Shaw, supra, 116 Cal.App.4th at p. 199.) A
ruling amounts to an abuse of discretion when it exceeds the bounds of
reason, and the burden is on the party complaining to establish that
discretion was abused. (Alfaro v. Waterhouse Management Corp. (2022)
82 Cal.App.5th 26, 36–37.) Further, an abuse of discretion is shown where a
trial court applies the wrong legal standard. (Riskin v. Downtown Los
Angeles Property Owners Assn. (2022) 76 Cal.App.5th 438, 446.)
B. The Court Used the Correct Legal Standard
Relying on the trial court’s comments at the hearing, Allison argues
that the court used the wrong legal standard because it evaluated a
hypothetical anti-SLAPP motion and not the actual motion before the court.
We disagree.
4 Allison does not challenge the court’s finding that appellants’ motion
was not “solely intended to cause unnecessary delay.” We accordingly do not
address that part of the court’s order.
15
The record does not affirmatively show the court used the wrong legal
standard when making its ruling. (Denham v. Superior Court (1970) 2 Cal.3d
557, 566 [appellant must affirmatively show error].) At the hearing and in its
order, the trial court recited the correct legal standard—it had to find that
“the motion” was frivolous or solely intended to delay. Prior to concluding
that the motion was not frivolous or solely intended to delay, the court
remarked that the petition was broadly drafted, including the request in the
fourth case of action seeking to prevent appellants from defaming, harassing,
insulting, or disparaging Allison, and that, had appellants “chosen to try to
articulate them, some of the portions of the complaint relied on actions that
were taken by employees of the LLC in terms of speaking about things that
might be protected conduct.” Appellants’ motion cited the same allegation to
which the court orally referred, and the motion alluded (without citation to
the petition or evidence) to Limbada’s complaint about Amanuel’s gun use.
Given this context, we read the court’s comment as conveying its belief that
the motion before it was not frivolous or intended solely for delay despite its
poor drafting and failure to show that any claim arose from protected
activity. While we ultimately reverse the court’s determination on that score,
we see no basis to conclude that the court did not address the actual motion
before it when rendering its ruling.
C. The Motion Was Frivolous
While we do not reach our conclusion lightly, the record in this case
convinces us that any reasonable attorney would conclude that appellants’
motion was totally without merit.
We agree with Allison that “[n]o straight-faced argument can be made”
for striking the entire petition or even any entire cause of action, each of
which included claims for relief based on clearly unprotected activity such as
16
restricting Allison’s use of the Ranch. (See Park v. Nazari, supra,
93 Cal.App.5th at p. 1106.) Appellants’ own acknowledgement that “not
everything in the Petition involves protected activity” should have alerted
them to the fact that, at a minimum, they were vastly overreaching.
Moreover, no reasonable attorney would conclude that the motion satisfied
the rules that govern challenges to mixed causes of action. Appellants’
briefing did not even mention the relevant cases from the California Supreme
Court.
While these considerations are relevant, they are not necessarily
dispositive. Even an obviously overreaching motion may have a non-frivolous
kernel, and a court may choose to overlook procedural shortcomings if, for
example, the non-moving party fails to raise them in opposition or there is no
real question about whether and where the petition has alleged protected
activity. Here, however, we see no reasonable argument that the petition
sought to impose liability on appellants based on their protected activity.
Appellants’ principal argument, both here and in the trial court, was
that the petition requested orders enjoining them from disparaging or
defaming her, or from permitting LLC employees to do so, and even further,
that would require them to prevent LLC employees from “offending” Allison.
But the question at the first step is whether the conduct alleged as the basis
for a claim for relief is protected activity, not whether the remedy sought—
considered apart from the conduct on which liability is premised—would
impinge on protected activity. (Hastings College Conservation Committee v.
Faigman (2023) 92 Cal.App.5th 323, 335 (Faigman); Coretronic Corp. v.
Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1392 [the fact that plaintiff
sought an injunction that would enjoin defendant law firm’s communication
with clients did not establish that the claims were based on protected
17
activity].) If there are no allegations of protected conduct underlying the
claims for relief, an anti-SLAPP motion does not lie.
To the extent appellants offered anything to suggest that Allison was
suing them based on protected activity, we find no arguable merit in it.
Appellants have not made any argument that the petition alleged actionable
instances of defamation or disparagement by them. If not entirely explicitly,
their motion did contend that protected activity formed the basis for the
petition’s request for an order that would require them to prevent LLC
employees from causing Allison “offense.” Among many episodes of discord
mentioned in the petition was the following: “Ms. Limbada became irate and
began yelling at Mr. Amanuel for reasons unknown. She threatened to call
the police and accused Mr. Amanuel of threatening her with a weapon.”
Appellants did not quote this allegation until their reply brief on appeal, but
in their motion they wrote that Allison “also asks the Court to restrain
Respondents’ deliberative process in how to respond to employee concerns of
gun violence. Restricting speech incident to a deliberative process is ‘an
overly broad restraint on speech which would inhibit constitutionally
protected activity.’ (Levy v. City of Santa Monica (2004) 114 Cal.App.4th
1252, 1261 . . . (Anti-SLAPP motion properly granted where Plaintiff sought
to restrain City Council Member’s participation in deliberative process on
approval of a playhouse).)” Although this argument was again a
characterization of the relief sought, it could have been rephrased to contend
that Allison sued appellants based on their past deliberations about how to
respond to what Limbada told them about this incident.5
5 Even assuming that Limbada’s speech was protected activity,
standing alone it does not provide a meritorious ground for a motion by
appellants. Appellants must show that the petition seeks to impose liability
18
That argument, however, would have been incorrect. We need not
consider whether such “deliberations” would be protected activity because the
petition does not allege deliberation as a basis for liability. To the extent the
petition asserted any claim in relation to this episode, it arose from the result
of those deliberations—appellants’ response or lack of response to Limbada’s
“offensive” gun accusation—not from the deliberations themselves. (See Park
v. Board of Trustees, supra, 2 Cal.5th at p. 1068 [discrimination claim
brought by professor denied tenure arose from tenure decision, not from
protected communications during tenure process]; Wilson, supra, 7 Cal.5th at
p. 890 [“The anti-SLAPP statute does not apply simply because an employer
protests that its personnel decisions followed, or were communicated through,
speech or petitioning activity”].) The case appellants cited, Levy v. City of
Santa Monica, supra, 114 Cal.App.4th 1252, is not on point. There, the
alleged wrongful conduct was a councilmember’s advocacy on behalf of a
constituent with planning department employees (what appellants called
“speech incident to a deliberative process”); that conduct furnished the basis
for the petitioner’s request to enjoin such advocacy in the future. (See id. at
p. 1261.) By contrast, no reasonable attorney reading Allison’s petition would
conclude that she sued appellants for a wrongful deliberative act.
To characterize the basis of the petition’s claims that way was not only
wrong, but frivolous. The petition shows that Allison was aggrieved by the
way appellants treated her and her husband, including in response to
Limbada’s gun accusation, and that she contends such treatment violated
on them based on their own protected activity. (See Faigman, supra,
92 Cal.App.5th at p. 333; Medical Marijuana, Inc. v. ProjectCBD.com (2016)
6 Cal.App.5th 602, 616–620 (Medical Marijuana) [anti-SLAPP motion to
strike libel and false light causes of action was properly denied because those
claims were not based on conduct by the moving defendants].)
19
their obligations to her as co-trustees. But appellants’ motion never
demonstrated that any of their alleged mistreatment of her—in response to
this incident or any other—constituted protected activity. An anti-SLAPP
motion must address what the petition itself asserts as the basis for liability,
not something else the defendant believes the claims are or could be based
on. (Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203,
218; see Moriarty v. Laramar Management Corp. (2014) 224 Cal.App.4th 125,
133–136.) Appellants’ strained effort to characterize the petition as an attack
on their “deliberations” in our view only betrays their recognition of the
problem.
The anti-SLAPP law serves an important purpose, but because a
motion automatically stays the litigation and provides for an award of fees, it
is also subject to abuse. (See Hewlett-Packard Co. v. Oracle Corp. (2015)
239 Cal.App.4th 1174, 1184–1186.) We acknowledge the trial court was
troubled by the petition’s requests for orders prohibiting defamation,
disparagement, and—by LLC employees only—offense. But again, those
requests warranted an anti-SLAPP motion only if the petition alleged
protected activity as the basis for them. If there were no factual allegations
to justify those requests, appellants could have moved to strike them as
irrelevant or improper matter under sections 435 and 436 rather under the
anti-SLAPP law. (See, e.g., Medical Marijuana, supra, 6 Cal.App.5th at
p. 621; Young, supra, 91 Cal.App.5th at pp. 96–97.) Allison herself
apparently considered them inessential because she offered to resolve the
motion by striking every request for an order that would impact speech either
by appellants themselves or by LLC employees. Citing their desire for a fee
award, appellants refused that offer. That was the wrong decision. Any
reasonable lawyer would have known there was no legal basis for the court to
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strike the petition or every cause of action therein, and no colorable argument
that appellants had been sued for engaging in protected activity. Allison was
accordingly entitled to an award of reasonable attorney’s fees, and the trial
court lacked discretion to deny her request. (§ 425.16, subd. (c)(1).)
DISPOSITION
The trial court’s order is affirmed insofar as it denied the anti-SLAPP
motion and is reversed insofar as it denied Allison’s request for attorney’s
fees. On remand, the trial court shall award Allison attorney’s fees incurred
in opposing the anti-SLAPP motion in the amount that it determines to be
reasonable. Allison is entitled to recover costs on appeal.
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
STREETER, J.
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Trial Court: San Mateo County Superior Court
Trial Judge: Honorable Elizabeth Hill
Counsel for Plaintiff and HOPKINS & CARLEY, Allonn E. Levy,
Appellant: Steven A. Ellenberg, Erika J. Gasaway,
Arthur E. Rothrock
Counsel for Defendants and THE WALSTON LAW GROUP, Gregory
Appellants: S. Walston
SHARTSIS FRIESE, John J. Stein
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