Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 34200800013077CUWMGDS
ROBIE, J.
Forster-Gill, Inc. appeals the denial of its special motion to strike pursuant to Code of Civil Procedure section 425.16 a nuisance cause of action in a cross-complaint filed by Bradshaw Landing, LLC. In denying the motion to strike, the trial court concluded that the nuisance cause of action did not arise from an act by Forster-Gill in furtherance of its right of petition or free speech. We agree. Accordingly, we affirm.
The lawsuits targeted by this statute are commonly referred to as strategic lawsuits against public participation or SLAPP lawsuits. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 71-72.) Code of Civil Procedure section 425.16 (section 425.16) is commonly referred to as the anti-SLAPP statute. (City of Cotati, at p. 72.)
FACTUAL AND PROCEDURAL BACKGROUND
We take the facts in the next two paragraphs from the trial court’s ruling:
“This action arises out of a dispute over a proposed movie theater, restaurant and retail project on the site of the Sacramento 6 Drive-In Theatre property off Bradshaw Road in Sacramento County. One of the features of the proposed project is the use of an existing access road known as Oates Drive as the primary entrance to the complex. Plaintiff/petitioner Forster-Gill... owns a parcel of land on Oates Drive on which it occupies an 80, 000 square foot industrial building. Trucks and automobiles doing business with Forster-Gill use Oates Drive for access to this building.”
“On June 12, 2008, Forster-Gill filed a complaint and petition for writ of mandate setting forth various claims in relation to the proposed project.... The petition and complaint named the County of Sacramento as the respondent and a number of other persons and entities as real parties in interest, including the developers of the proposed project, Syufy Enterprises, LLC, Bradshaw Landing..., and Sywest Development, LLC....”
Bradshaw Landing filed a cross-complaint against Forster-Gill, alleging causes of action for quiet title, nuisance, and declaratory relief. In its cross-complaint, Bradshaw Landing alleges that it owns an easement to use Oates Drive for ingress and egress. In paragraph 8 of the cross-complaint, Bradshaw Landing further alleges that Forster-Gill is “‘purporting to utilize portions of [the property over which Oates Drive runs] in such a way as to preclude the usage of [the property] as a roadway for ingress and egress, including but not limited to placement of truck loading and maneuvering areas within such property and other significant and sustained interference with [Bradshaw Landing’s] use of [the property] and other property.’” In its cause of action for nuisance, Bradshaw Landing alleges that Forster-Gill’s use of the property over which Oates Drive runs “‘substantially and materially interfere[s] with [Bradshaw Landing’s] easement rights’ and ‘unlawfully obstructs and interferes with the free passage or use of a street, and is therefore a nuisance within the meaning of Civil Code section 3479.’”
As relevant here, Civil Code section 3479 provides that “[a]nything which... unlawfully obstructs the free passage or use, in the customary manner, of... any... street, or highway, is a nuisance.”
In April 2009, Forster-Gill filed a special motion to strike the nuisance cause of action, asserting that “the allegations of the Cross-complaint arise out of [Forster-Gill]’s exercise of its constitutional right to petition for grievances, are retaliatory in nature, and it is not probable that [Bradshaw Landing] will prevail on its claim for nuisance.” More specifically, Forster-Gill argued that Bradshaw Landing filed the nuisance cause of action in retaliation for Forster-Gill’s filing of its complaint and mandamus petition, which was “an exercise of [Forster-Gill’s] constitutional right to petition for grievances.”
In opposing the special motion to strike, Bradshaw Landing argued that its nuisance cause of action “ar[o]se from [Forster-Gill]’s interference in [Bradshaw Landing]’s property rights and claim of right to control or exclude access over a portion of Oates Drive” and not from “any assertion by Forster-Gill of its constitutional rights of petition or free speech.”
In its reply brief, Forster-Gill changed its position slightly, arguing for the first time that the nuisance cause of action “arises solely from statements made by Forster-Gill during the administrative proceedings” regarding the proposed project.
The trial court agreed with Bradshaw Landing, concluding that “[t]he nuisance cause of action of the cross-complaint, as revealed particularly by paragraph 8 thereof, arises from Forster-Gill’s alleged business activities on a portion of Oates Drive, such as the placement of truck loading and maneuvering areas on that parcel. These activities are not acts in furtherance of the rights of petition or free speech, or acts of the kind enumerated in Code of Civil Procedure section 425.16(e).” Accordingly, the trial court denied the special motion to strike. From that ruling, Forster-Gill timely appealed. (§ 425.16, subd. (i).)
DISCUSSION
I
Overview Of The Anti-SLAPP Statute
The Legislature enacted section 425.16 to address “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).) Under this section, 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, ” is subject to a special motion to strike “unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Id., subd. (b)(1).)
“As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) 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, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) 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).)
“Section 425.16 posits... a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e).’ [Citation.] If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citations.]” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) “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 SLAPP, subject to being stricken under the statute.” (Id. at p. 89.)
On appeal, “[w]e review the trial court’s rulings on an anti-SLAPP motion de novo.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
II
Adequacy Of The Record On Appeal
At the threshold, Bradshaw Landing argues we should not consider the merits of Forster-Gill’s appeal because Forster-Gill did not include the cross-complaint in the record on appeal and thus we cannot evaluate “whether the challenged cause of action ‘arises from’ petitioning activity, or has probable merit.” It is true “[t]he burden is on the appellant to produce an adequate record on appeal....” (Davenport v. Unemployment Ins. Appeals Bd. (1994) 24 Cal.App.4th 1695, 1700.) Here, however, the record on appeal is not rendered inadequate by the absence of the cross-complaint because in its ruling on the special motion to strike the trial court fully set forth “[t]he portions of Bradshaw Landing’s cross-complaint that relate to its cause of action for nuisance.” This verbatim recitation of the pertinent allegations provides an adequate substitute for the cross-complaint itself. Accordingly, we turn to the merits of the appeal.
III
Arising From Protected Activity
In denying Forster-Gill’s special motion to strike, the trial court concluded that Bradshaw Landing’s nuisance cause of action was not a SLAPP suit because it did not arise from any act by Forster-Gill in furtherance of Forster-Gill’s right of petition or free speech but instead arose from Forster-Gill’s “business activities on a portion of Oates Drive, such as the placement of truck loading and maneuvering areas on that parcel.” The trial court was exactly right. As noted above, and as the court explained, the cross-complaint specifically alleges that Forster-Gill is “‘purporting to utilize portions of [the property over which Oates Drive runs] in such a way as to preclude the usage of [the property] as a roadway for ingress and egress, including but not limited to placement of truck loading and maneuvering areas within such property and other significant and sustained interference with [Bradshaw Landing]’s use of [the property] and other property.’” Furthermore, the cause of action for nuisance alleges that Forster-Gill’s use of the property over which Oates Drive runs “‘substantially and materially interfere[s] with [Bradshaw Landing]’s easement rights’ and ‘unlawfully obstructs and interferes with the free passage or use of a street, and is therefore a nuisance within the meaning of Civil Code section 3479.’”
On appeal, Forster-Gill asserts that: (1) “the only foundational facts contained in [the nuisance] cause of action [are] from [Forster-Gill]’s statements during the administrative hearings for [Bradshaw Landing]’s commercial project”; (2) “the nuisance claim is based solely on the facts raised in [Forster-Gill]’s protest of [Bradshaw Landing]’s Project”; and (3) “[t]he basis of [Bradshaw Landing]’s nuisance cause of action arises solely from statements made by [Forster-Gill] during the administrative proceedings and the lawsuit filed by [Forster-Gill].” Forster-Gill further asserts that “[n]o specific instance of nuisance has been alleged by [Bradshaw Landing].” All of these assertions are incorrect. Contrary to Forster-Gill’s assertions on appeal, the allegations of the cross-complaint show that the nuisance cause of action is not based on any statements made during the administrative proceedings for the proposed project or the filing of the lawsuit, but instead is based on Forster-Gill’s use of Oates Drive, which Bradshaw Landing claims is a nuisance because that use unlawfully obstructs and interferes with the free passage or use of the street.
It is true that Bradshaw Landing’s cross-complaint includes an allegation that Forster-Gill is “claiming a fee interest in” the property over which Oates Drive runs, and it may be that Forster-Gill claimed that fee interest during the administrative hearings over Bradshaw Landing’s project, as well as in its complaint and petition for writ of mandate. The nuisance cause of action, however, is premised on Forster-Gill’s “use” of Oates Drive, rather than on Forster-Gill’s claim to a fee interest in the land over which the street runs. For this reason, the nuisance cause of action does not arise from any act by Forster-Gill in furtherance of its right of petition or free speech, and the trial court correctly denied Forster-Gill’s special motion to strike on that basis.
DISPOSITION
The order denying the special motion to strike is affirmed. Bradshaw Landing shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: HULL, Acting P. J., HOCH, J.