Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. 37-2007-00064754-CU-DF-CTL. Ronald S. Prager, Judge.
McINTYRE, J.
Michelle Anderson appeals from an order denying her special motion to strike a complaint under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute. (All undesignated statutory references are to the Code of Civil Procedure.) We conclude that the anti-SLAPP statute is inapplicable because the complaint does not arise from acts in furtherance of the constitutional right of petition or free speech in connection with a public issue. (§ 425.16, subds. (b)(1), (e).) Accordingly, we affirm the order denying the anti-SLAPP motion.
FACTUAL AND PROCEDURAL BACKGROUND
Michael Daugherty and Leon Jackson are shareholders of Eurosystems, a San Diego hardware company. Anderson is a customer of Eurosystems and is dating Jackson. In 2006, a dispute arose between Daugherty and Jackson regarding the business and Jackson allegedly made defamatory comments about Daugherty to employees, customers and vendors. Daugherty hired an attorney, Matthew Becker, who sent a letter to Jackson demanding that Jackson cease and desist disparaging Daugherty and trying to force him out of the company or face "whatever action" necessary to prevent further damage. Anderson opened and read the letter under the mistaken belief that it was addressed to her, she then contacted Becker to discuss the contents of the letter. During these telephone conversations, Anderson allegedly stated, among other things, that Daugherty was dishonest and that she had been discussing this with the employees, customers and vendors of Eurosystems. Becker then sent Anderson two letters (the letters) demanding that she stop disparaging Daugherty.
After Anderson failed to respond to the letters, Daugherty filed this action against her. The complaint alleged causes of action for slander and intentional and negligent interference with prospective business advantage relating to Anderson's alleged defamatory remarks about him to third parties and included the letters as attachments. Anderson demurred to the complaint and moved to strike it under section 425.16. The trial court partially sustained the demurrer, but denied the motion to strike the complaint, concluding that the anti-SLAPP statute did not apply. Anderson appeals from this order.
DISCUSSION
I. Burden of Proof and Standard of Review
A special motion to strike under section 425.16 allows a defendant to gain early dismissal of a lawsuit that qualifies as a SLAPP. (§ 425.16, subd. (a).) In ruling on an anti-SLAPP motion, the trial court must first decide whether the moving defendant has made a prima facie showing that the plaintiff's suit is subject to section 425.16, i.e., that the challenged claims arise from an act or acts in furtherance of his or her right of petition or free speech. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) These acts include written or oral statements made before a judicial proceeding or in connection with an issue under consideration or review by a judicial body. (§ 425.16, subd. (e)(1) & (e)(2).)
To determine whether a defendant has met its initial burden, we consider the pleadings and any supporting and opposing affidavits stating facts upon which the liability is based. (§ 425.16, subd. (b)(2); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79 (City of Cotati).) "[T]he 'arising from' requirement is not always easily met" and "the mere fact an action was filed after protected activity took place does not mean it arose from that activity." (Equilon, supra, 29 Cal.4th at p. 66.) A claim "arises from" an act when the act "forms the basis for the plaintiff's cause of action[.]" (Ibid.) If the defendant establishes the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a "probability" of prevailing on the claim. (Equilon, supra, 29 Cal.4th at p. 67.) We review de novo the trial court's rulings on an anti-SLAPP motion. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645.)
II. Analysis
Anderson asserts that the only actions underlying Daugherty's complaint were her conversations with Becker in response to his demand letter and that these conversations were protected communications in anticipation of litigation. The complaint, however, does not mention Daugherty's threatened "action" against Jackson, the demand letter, or the telephone conversations. Rather, the complaint alleges that Anderson defamed Daugherty by making false statements about him, including that he was dishonest, unethical and incompetent, to Eurosystems' landlord and his employees, customers and vendors. The alleged acts underlying Daugherty's causes of action – contacting third parties and accusing him of improper conduct – were not made before or in connection with a judicial or other type of official proceeding and are not protected by the anti-SLAPP statute. (§ 425.16, subd. (e)(1) & (2).)
Attached to the complaint are the letters Becker sent to Anderson that mentioned Becker's earlier cease and desist letter to Jackson and Anderson's communications with Becker regarding the proposed litigation against Jackson. Although Anderson's communications with Becker regarding proposed litigation would be protected activity, these conversations did not give rise to the complaint. The fact Daugherty became aware of Anderson's earlier defamatory remarks because of her conversations with Becker is not relevant to the question of whether the causes of action were themselves based on an act in furtherance of Anderson's right of petition or free speech.
Similarly, the declaration Anderson filed in support of the motion to strike simply denies the allegations in the complaint; it does not establish that the allegations actually arose from protected speech. Stated differently, Daugherty's damages are based on Anderson's alleged defamatory comments to third parties about him and not any proposed legal action. Because Anderson failed to meet her initial burden of showing that Daugherty's complaint is subject to the SLAPP statute, we need not address whether Daugherty established a probability of success on his claims against her and the merits of these allegations will be determined in the course of further proceedings.
DISPOSITION
The order granting the motion to strike is affirmed. Daugherty is awarded costs on appeal.
WE CONCUR: BENKE, Acting P. J. AARON, J.