Opinion
F084326
07-25-2023
J & D WILSON AND SONS DAIRY, LP et al., Plaintiffs and Respondents, v. J. G. BOSWELL COMPANY et al., Defendants and Appellants.
Herr Pedersen &Berglund, Leonard C. Herr and Ron Statler for Defendants and Appellants. Wanger Jones Helsley, Amanda G. Hebesha, John P. Kinsey and Marisa L. Balch for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kings County No. 22C-0067. Valerie R. Chrissakis, Judge.
Herr Pedersen &Berglund, Leonard C. Herr and Ron Statler for Defendants and Appellants.
Wanger Jones Helsley, Amanda G. Hebesha, John P. Kinsey and Marisa L. Balch for Plaintiffs and Respondents.
OPINION
PENA, J.
The defendants appeal the trial court's order denying their special motion to strike the plaintiffs' complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute. (Undesignated statutory references are to the Code of Civil Procedure.) We affirm because the acts supplying a basis for relief on the plaintiffs' claims are not protected under the statute; and even if they were, the defendants have not demonstrated reversible error in the trial court's additional finding on the plaintiffs' probability of prevailing.
FACTUAL AND PROCEDURAL SUMMARY
General Background and Surrounding Litigation
Defendants in this action are Mark Unruh and J. G. Boswell Company (Boswell). Boswell has its primary place of business in Kings County, where it owns property neighboring certain parcels of agricultural land being leased by plaintiffs for their commercial "feeder cattle" grazing venture. Unruh is employed as a manager at Boswell, but just as importantly for purposes of this case, he is also the president of the board of directors for the Tulare Lake Canal Company (TLCC), a mutual water company that owns a canal that carries water across various third parties' properties and delivers the water to its shareholders' agricultural land.
Plaintiffs are J &D Wilson and Sons Dairy, LP; Dylan Wilson; James Wilson, Jr.; and Sandridge Partners LP (Sandridge Partners). Plaintiffs run a joint venture (Wilson and Sandridge Cattle Feed) raising feeder cattle, and they lease 30-odd parcels of property for cattle grazing, some of which are owned by Sandridge Partners. We refer to the full set of lots-identified by their assessor's parcel numbers in the complaint-as the "subject property."
TLCC's canal runs through part of the subject property. Meanwhile, Sandridge Partners has been constructing a water conveyance pipeline across parts of the subject property, for agricultural and commercial uses. In January 2022, Sandridge Partners informed Unruh and TLCC the water pipeline would cross under the canal. Later that month, TLCC filed a complaint against Sandridge Partners and others, seeking to enjoin the trenching and installation of the pipeline across the canal. (Tulare Lake Canal Company v. Sandridge Partners, L.P. et al. (Super. Ct. Kings County, 2022, No. 22C-0019); Appeal No. F084439 (Trespass Case).) In February 2022, TLCC also filed a petition for writ of mandate regarding the pipeline construction under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.), naming Sandridge Partners as one of the real parties in interest. (Tulare Lake Canal Company v. Stratford Public Utility District et al. (Super. Ct. Kings County, 2022, No. 22C-0046); Appeal No. F084228 (CEQA Case).) The appellate decisions in both cases were filed by this court on June 7, 2023.
In seeking and opposing various requests for relief in both the Trespass and CEQA Cases, in February and March 2022, TLCC filed with the superior court a series of declarations by Unruh providing information gathered and photographs taken from helicopter flights over the subject property during the same months. Boswell owns the helicopter used to fly over the subject property. TLCC is an "affiliate" of Boswell's, and Boswell was made a cross-defendant in the Trespass Case. Boswell had employees- including Unruh-fly in the helicopter to observe various portions of the pipeline construction project in relation to the pending cases.
The Instant Complaint
Plaintiffs filed their complaint in this action on March 4, 2022, alleging these helicopter flights had been endangering persons and cattle on the subject property since early January. According to the complaint, the Boswell helicopter was flown at altitudes as low as 30 to 50 feet above plaintiffs' cattle herds, spooking the cattle with the associated wind and noise, and causing them to "stampede" and charge into each other and at times through the barbed wire and electric fencing containing them. As a result, cattle would wind up on neighboring parcels and on State Highway 41, which abuts at least one of plaintiffs' leased parcels. On information and belief, the complaint identified Unruh as "the operator or a passenger" on the helicopter during these flights.
The complaint asserts three causes of action against Boswell and Unruh-for trespass, public nuisance, and private nuisance-due to them "intentionally, recklessly[,] and improperly operat[ing]" the Boswell helicopter "at altitudes below those prescribed by law and so conduct[ing] their flights as to be imminently dangerous to persons and property, including [p]laintiffs' cattle." The complaint does not mention the taking of photographs from the helicopter, but it does reference TLCC's filing of the Trespass Case in the context of alleging defendants operated the flights "dangerously" "in an effort to interfere with [their] grazing cattle business and in retaliation" for Sandridge Partners's pipeline construction. In addition to seeking compensatory and punitive damages, the complaint requests an "injunction requiring [d]efendants to immediately cease and desist from operating the Boswell [h]elicopter, or any other aircraft, over the [s]ubject [p]roperty."
Plaintiffs' Evidence and Temporary Restraining Order
On March 14, 2022, plaintiffs filed an ex parte application for a temporary restraining order (TRO) and an order to show cause regarding a preliminary injunction. Like the complaint, the TRO application sought to restrain defendants from flying any aircraft or helicopter over the subject property. Plaintiffs provided declarations by persons involved with managing their cattle and land, who described their observations of the Boswell helicopter's flights. These declarations and certain later filed supplemental and amended declarations comprised plaintiffs' evidence the trial court considered in ruling on the anti-SLAPP motion now before us. (See Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005, 1029 (Slauson) [trial court could consider evidence for purposes of ruling on both injunction request and anti-SLAPP motion].)
To give a sampling, in his original and supplemental declarations, Sandridge Partners's farm manager, Craig Andrew, described "many times" seeing the Boswell helicopter fly at altitudes as low as 50 feet over the subject property in a manner dangerous to persons and property, including cattle. Andrew attached flight reports and maps (from a digital flight tracking app) for seven flights by the helicopter in late February and early March. Andrew and others averred the helicopter's low flying creates dust, wind, and very deep and loud noise that spooks the cattle and affects the crews working in the field. Other declarants described the flights as lasting up to an hour, with the helicopter traveling slow and low-between 35 and 50 feet from the ground- sometimes hovering or moving slowly over the feed lot and cow pastures for 30 minutes at a time. They described observing the helicopter frighten the cattle, causing the cattle to injure themselves by running into poles or other obstructions on the property.
Andrew's declaration and the amended declaration of the joint venture's ranch manager, James Wilson, Sr., together, identified at least four occasions on which the Boswell helicopter also caused cattle to break through their fencing and onto State Highway 41 or other neighboring roadways. The most recent incident described was on March 8, 2022, when the Boswell helicopter's flight caused some 54 cows and calves to break through five electric wire fences. One calf was missed in the roundup effort, and that evening it was struck and killed by a tow truck driving on State Highway 41.
Defendants do not take issue with the consideration of evidence of events occurring after the filing of the complaint, which has been deemed permissible in resolving anti-SLAPP motions. (Slauson, supra, 112 Cal.App.4th at p. 1022.)
At a hearing on March 17, 2022, the court advised it could not issue an order conflicting with Federal Aviation Administration regulations by, in effect, creating a nofly zone over the subject property; and at the court's urging the parties entered and the court later issued a stipulated TRO requiring defendants to comply with parts 91.13(a) and 91.119(d) of title 14 of the Code of Federal Regulations.
Part 91.13(a) of title 14 of the Code of Federal Regulations states: "No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." Part 91.119(d) of title 14 of the Code of Federal Regulations permits helicopters to be operated below the 500-foot minimum otherwise applicable to aircraft flying over sparsely populated areas if their operation is conducted "without hazard to persons or property on the surface."
Anti-SLAPP Motion and Defendants' Evidence
Defendants filed the instant anti-SLAPP motion on April 8, 2022. Defendants argued, as they do in this appeal, they were being sued because of the use of the helicopter to gather evidence in the Trespass and CEQA Cases, and plaintiffs could not prevail on their claims. Defendants attached declarations by Unruh and two Boswell pilots, providing their own flight records. Unruh averred he is not a pilot and has never flown the Boswell helicopter; the flights he took over the subject property were "done with the intention and the effect of [him] gathering information, sometimes photographic, sometimes not," in the Trespass and CEQA Cases; the flights were "for the purpose of investigating and determining the extent of the pipeline being installed" and "also to determine what damage was caused to the canal banks" by Sandridge Partners; and he had "never seen cattle appear to be distressed by" any of his flights.
The pilots averred they were the ones flying the helicopter, not Unruh; they did not fly the helicopter below 400 feet on March 8, the date of the calf's highway death; they never flew in a manner that would endanger people or property; one flight went as low as 20 feet to view activity on the canal, but the pilot saw no cattle nearby; and no one affiliated with Boswell, including Unruh, had ever asked them to harass cattle or other livestock in the helicopter.
Anti-SLAPP Ruling
The motion was fully briefed, and after hearing argument on May 5, 2022, the trial court ruled from the bench, denying the anti-SLAPP motion as to both defendants. The court then issued a written order on May 11, 2022, further explaining its denial. On the first prong, the court found the complaint "addresse[d] not the fact of [d]efendants' investigation for purposes of [the Trespass Case], but the manner in which such investigation was undertaken"; and because the "principal thrust or gravamen" of the complaint was not defendants' right to investigate, the complaint was not "directed to defendants' constitutional right of petition or free speech," even though pretrial investigation may be protected conduct. (Underscoring omitted.) The court also went on to the second prong, finding even if defendants satisfied the first prong, plaintiffs had made a prima facie showing of facts to sustain a favorable judgment on the merits of their claims against both Boswell and Unruh. After the court announced its decision at the hearing on the motion, defense counsel voiced "some real problems" with plaintiffs' declarations based on lack of foundation. The court responded that defendants had not filed any objections to the declarations before the hearing so any evidentiary objections were waived.
Defendants timely appeal from this order denying their anti-SLAPP motion.
Preliminary Injunction Ruling
The parties agreed to continue the evidentiary hearing on plaintiffs' request for preliminary injunction and to extend the TRO to allow defendants time to appeal the anti-SLAPP ruling. The parties presented no live testimony regarding the preliminary injunction request, submitting on the declarations and evidence on file. After oral argument, on October 3, 2022, the court issued a written order granting in part and denying in part plaintiffs' request. The court denied the request as to Unruh, finding no likelihood of success on the merits against him individually because there was no evidence he flew the Boswell helicopter or instructed or directed how it should be flown. The court granted a preliminary injunction against Boswell, however, finding plaintiffs would likely prevail on one or more claims against the company based on "clear and substantial evidence" of two occasions on which the helicopter "was flown over or near the [s]ubject [p]roperty in a careless, reckless, or negligent manner so as to interfere with [p]laintiffs' use of the same for the grazing of their feeder cattle and/or endanger the health and welfare of [p]laintiffs' cattle and/or the public." The preliminary injunction prohibits Boswell from operating its helicopter in such a manner. In a separate appeal currently pending in this court, defendants challenge the ruling on the preliminary injunction. (J &D Wilson and Sons Dairy et al. v. J. G. Boswell Company et al. (F085134, app. pending).)
Plaintiffs have requested this court take judicial notice of the trial court's preliminary injunction order. The motion is unopposed. We deferred ruling on this request pending consideration of the merits of the appeal. We hereby take judicial notice of the trial court's October 3, 2022, preliminary injunction order issued in this case after the filing of the instant appeal of the anti-SLAPP ruling. (See Evid. Code § 452, subd. (d); Cal. Rules of Court, rule 8.252.)
DISCUSSION
I. General Anti-SLAPP Principles
The anti-SLAPP statute authorizes a special motion to strike a "cause of action" "arising from any act ... in furtherance of [a] person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . ., 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. (b)(1).) The statute dictates a two-step process for resolving an anti-SLAPP motion. "First, 'the moving defendant bears the burden of establishing that the challenged allegations or claims "aris[e] from" protected activity in which the defendant has engaged.' [Citation.] Second, for each claim that does arise from protected activity, the plaintiff must show the claim has 'at least "minimal merit."'" (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).) Only a claim that "satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit" will be stricken. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
We review de novo the grant or denial of an anti-SLAPP motion. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).) This includes independently determining, based on our own review of the entire record, "whether any of the acts from which challenged claims arise" are protected under the statute. (Bonni, supra, 11 Cal.5th at p. 1009; see Park, at p. 1067.) In both the first and second steps, or prongs, we consider "the pleadings[] and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2); see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) We are also mindful of the directive to broadly construe the anti-SLAPP statute. (§ 425.16, subd. (a).)
II. Analysis
Defendants argue this is a classic strategic lawsuit against public participation (SLAPP) because, according to them, it was filed in response to defendants' surrounding litigation against one of the plaintiffs (Sandridge Partners) and with the aim of prohibiting all flights over the subject property by any aircraft at any altitude-as evinced by the phrasing of the complaint's prayer for injunctive relief. Focusing on the complaint's timing and its request to enjoin them "from operating the Boswell [h]elicopter, or any other aircraft, over the Subject Property," defendants argue the complaint was meant to prevent their further collection of aerial photographic evidence in aid of the Trespass and CEQA Cases, which is protected petitioning activity. Defendants fault the trial court for ignoring the broadly phrased request for injunctive relief when it concluded the complaint principally targets the manner in which defendants were investigating, not the fact of their investigating. Defendants also assert error in finding the second prong satisfied because plaintiffs did not present competent evidence to substantiate their claims, and the trial court misread defendants' evidence-especially as to the claims against Unruh.
Plaintiffs counter one line of their prayer for relief does not outweigh all of the other aspects of their complaint-and of their subsequent litigation of the TRO and preliminary injunction-demonstrating the "gravamen or principal thrust" of the complaint was to stop the disruption and harm being caused to their cattle by the manner in which the Boswell helicopter was being flown. Plaintiffs also defend the second-prong finding both on its merits and because defendants waived their evidentiary objections by not raising them before the trial court's ruling.
A. Defendants Have Not Shown Plaintiffs' Claims Arise from Protected Activity
"A claim arises from protected activity when that activity underlies or forms the basis for the claim." (Park, supra, 2 Cal.5th at p. 1062.) Our Supreme Court's recent anti-SLAPP decisions counsel lower courts to "take[] a claim-by-claim approach to the anti-SLAPP analysis, rather than attempting to evaluate a cause of action as a whole." (Bonni, supra, 11 Cal.5th at p. 1010, citing Baral v. Schnitt (2016) 1 Cal.5th 376; see id. at pp. 1010-1011.) This guidance appeared most recently in the 2021 Bonni decision where the high court disapproved the use of a "gravamen approach" to discern the "'essence' of a cause of action that encompasses multiple claims." (Bonni, at p. 1011.) However, it equally calls into question the approach adopted by the parties here-and to some extent applied by the trial court-arguing about the "gravamen" or "principal thrust" of the complaint as a whole and whether its overall purpose was to chill petitioning-related activity.
In the section of their brief devoted to the first-prong analysis, defendants exclusively attempt to convince us of the true underlying purpose of the lawsuit- insisting it was not meant to prevent a trespass but rather to prevent observation and documentation of Sandridge Partners's work on the pipeline. But, fortunately, distilling the "essence" or purpose of the overall complaint is not what we are called to do in applying the first prong of the anti-SLAPP statute. "Instead, courts should analyze each claim for relief-each act or set of acts supplying a basis for relief ... -to determine whether the acts are protected ...." (Bonni, supra, 11 Cal.5th at p. 1010.) (Accordingly, we also reject plaintiffs' arguments that their satisfaction with the terms of the stipulated TRO and the subsequent preliminary injunction-restricting unlawful flight, as opposed to all flight-shows their suit was not intended to thwart all aerial investigation efforts.)
The first-prong analysis proceeds in two parts. Courts must initially "'consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.'" (Bonni, supra, 11 Cal.5th at p. 1009, quoting Park, supra, 2 Cal.5th at p. 1063.) "Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of '"act[s]"' protected by the anti-SLAPP statute." (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884; see § 425.16, subd. (e).) The Supreme Court has consistently instructed our twin foci must be: (1) "what 'the defendant's activity [is] that gives rise to his or her asserted liability,'" and (2) "'whether that activity constitutes protected speech or petitioning.'" (Park, at p. 1063, quoting Navellier v. Sletten, supra, 29 Cal.4th at p. 92.)
Beginning with the first of these subsidiary inquiries, we start by looking to the elements of the claims challenged within the complaint-not the overall thrust of the complaint. (See Bonni, supra, 11 Cal.5th at p. 1015 ["Again, a claim is subject to an anti-SLAPP motion to strike if its elements arise from protected activity"].) Defendants moved to strike the entire complaint, which contains three formal causes of action: one for trespass, one for public nuisance, and one for private nuisance.
"'The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.'" (Golden Gate Land Holdings LLC v. Direct Action Everywhere (2022) 81 Cal.App.5th 82, 90-91 (Golden Gate).)
To state a cause of action for public nuisance, "a plaintiff must allege that a defendant created (or had active involvement in creating) a condition that was harmful to health or interfered with the comfortable enjoyment of life or property; that the condition affected a substantial number of people at the same time; that an ordinary person would be reasonably annoyed or disturbed by the condition; that the seriousness of the harm outweighs the social utility of the defendant's[] conduct; that the plaintiff did not consent to the conduct; that the plaintiff suffered harm that was different from the type of harm suffered by the general public; and that the defendant's conduct was a substantial factor in causing the plaintiff's harm." (Gregory Village Partners, L.P. v. Chevron U.S.A., Inc. (N.D.Cal. 2011) 805 F.Supp.2d 888, 901; see Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548; Civ. Code, §§ 3479, 3480, 3493.) A private nuisance "includes all those nuisances not covered by the definition of public nuisance" where the plaintiff's injury is "specifically referable to the use and enjoyment of his or her land." (Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 610; see Civ. Code, § 3481.)
Next, we ask "'what actions by [defendants] supply those elements and consequently form the basis for liability.'" (Bonni, supra, 11 Cal.5th at p. 1009.) The elements of trespass focused on a defendant's actions are: sufficiently culpable "'entry onto the property'" and "'conduct [that] was a substantial factor in causing the harm.'" (Golden Gate, supra, 81 Cal.App.5th at pp. 90-91.) The actions that would satisfy those elements are the alleged flying of the Boswell helicopter close enough to cattle or other property to constitute an "entry" and to substantially contribute to injuring said cattle or other property. Notably, the taking of photographs of the land would not supply either of these elements. Likewise, as to public and private nuisance, it is only the alleged flying of the Boswell helicopter too close to cattle that could create "a condition that was harmful to health or interfered with the comfortable enjoyment of life or property." (Gregory Village Partners, L.P. v. Chevron U.S.A., Inc., supra, 805 F.Supp.2d at p. 901.) The taking of photographs from the helicopter is irrelevant to proving either nuisance claim.
Accordingly, the allegedly reckless flying of the helicopter is the act defendants must demonstrate is protected under section 425.16, subdivision (e). (See Park, supra, 2 Cal.5th at p. 1063 ["'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)'"]; see also Bonni, supra, 11 Cal.5th at p. 1015 [courts must consider "the actions alleged to establish [the claim's] elements, and whether those actions are protected"].) "Under Bonni, it is still appropriate to consider the gravamen of a claim to determine whether the protected conduct identified by the moving party supplies an element of the claim or is merely incidental." (Pech v. Doniger (2022) 75 Cal.App.5th 443, 462, fn. 3.) But, as courts have recognized even before Bonni, "[t]he concepts of 'principal thrust' and 'gravamen,' ... may be too indefinite and abstract to provide a clear rule with predictable results." (Old Republic Construction Program Group v. The Boccardo Law Firm, Inc. (2014) 230 Cal.App.4th 859, 868.) The clearer rule is: a claim "can only be said to arise from protected conduct if it alleges at least one wrongful act-conduct allegedly breaching a duty and thereby injuring the plaintiff-that falls within [section 425.16]'s definition of protected conduct." (Id. at p. 869; see Wong v. Wong (2019) 43 Cal.App.5th 358, 365 [adopting this rule].) "'If the core injury-producing conduct upon which the plaintiff's claim is premised does not rest on protected speech or petitioning activity,'" anti-SLAPP protection does not apply. (Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 594.)
In their briefs to this court, defendants do not identify which of the anti-SLAPP categories of protected acts they believe embrace their assertedly petitioning-related activity. Section 425.16, subdivision (e) defines protected acts to include, as relevant here, "any written or oral statement or writing" made before a legislative, executive, or judicial body, or any other official proceeding authorized by law, or in connection with an issue under consideration or review by such bodies or proceedings (§ 425.16, subd. (e)(1), (2)), as well as "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)). In the trial court, defendants asserted coverage under all three of these subparts for Unruh and under subdivision (e)(4) of section 425.16 for Boswell. Because the trial court analyzed only subdivision (e)(4) of section 425.16 and defendants assert no error in doing so, we likewise confine ourselves to that provision. (In any event, plaintiffs' claims do not arise from Unruh's filing of his declarations in the related cases, so we see no basis for protection under § 425.16, subd. (e)(1) or (2).)
Defendants do not attempt to argue flying a helicopter recklessly qualifies as "conduct in furtherance" of their right of petition (§ 425.16, subd. (e)(4)), and we conclude it does not. The flying of the helicopter in a reckless manner-not the taking of photographs or other types of evidence gathering-is the "conduct by which plaintiff[s] claim[] to have been injured." (Park, supra, 2 Cal.5th at p. 1063, italics omitted.) Flying the helicopter too close to cattle is the "'core injury-producing conduct'" upon which plaintiffs' claims rest. (Area 51 Productions, Inc. v. City of Alameda, supra, 20 Cal.App.5th at p. 594.) Because defendants did not demonstrate such conduct falls within one of the four categories described in section 425.16, subdivision (e), the trial court correctly denied their anti-SLAPP motion at the first prong of the analysis. (See Park, at p. 1073.)
Ultimately, we have arrived at the same conclusion as the trial court, albeit by applying a more claim-specific approach to the analysis. The trial court's focus on "the principal thrust or gravamen" of the complaint as a whole left its conclusion vulnerable to the inapposite arguments raised in this appeal about the true purpose or "essence" of the complaint and whether the phrasing of the request for relief could alter it. Removing those "indefinite and abstract" terms from the equation (Old Republic Construction Program Group v. The Boccardo Law Firm, Inc., supra, 230 Cal.App.4th at p. 868), and instead applying the elements-based approach dictated by more recent precedent, helps to focus the inquiry on "the facts upon which ... liability ... is based" (§ 425.16, subd. (b)(2)). Whatever the possible underlying motives for plaintiffs' complaint, their claims do not arise from protected activity because the only identifiable protected activity asserted-the gathering of evidence for related litigation-does not establish an element of any of the claims in the complaint. That remains so, whether or not one considers the injunctive relief requested.
B. Assuming Satisfaction of the First Prong, Defendants Have Not Shown Reversible Error on the Second Prong
Still, we recognize the above conclusion is largely a matter of framing. If one frames the injury-producing conduct not as "flying a helicopter too close to cattle" but as "flying a helicopter low enough to document violations of legal agreements and environmental regulations" (with the ancillary effect of disturbing cattle), it sounds much more like protected activity under section 425.16, subdivision (e)(4). As the trial court acknowledged, protected petitioning activity includes "not only the conduct of litigation but also acts and communications reasonably incident to litigation," including gathering information for presentation to a court either before or during nonfrivolous litigation. (Bonni, supra, 11 Cal.5th at p. 1025; see id. at pp. 1024-1025 ["In determining what constitutes protected petitioning activity, 'we must give adequate "breathing space" to the right of petition'"]; Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 10711074 [concluding, in second-prong analysis of the plaintiff's First Amendment claims, the plaintiff's conduct was protected conduct because prelitigation investigation of potential claims "is sufficiently related to the right to petition as to fall within the protected 'breathing space' of that right"].)
"In some cases ..., whether the defendant's act qualifies as one in furtherance of protected speech or petitioning will depend on whether the defendant took the action for speech[- or petitioning]-related reasons." (Wilson v. Cable News Network, Inc., supra, 7 Cal.5th at p. 889.) When considering whether "apparently noncommunicative acts," such as flying or directing a helicopter, qualify under section 425.16, subdivision (e)(4), "a court should attend to contextual factors such as the purpose of the conduct at issue." (Bonni, supra, 11 Cal.5th at p. 1020, fn. 9.) Indeed, ignoring a defendant's asserted purpose for the injury-producing conduct would allow many tort-based suits to escape anti-SLAPP challenges by targeting only the defendant's physical acts (e.g., entering private property) without reference to their overall context (e.g., entering private property in order to protest).
Although, as explained above, we conclude the underlying activity is properly identified as flying the helicopter too close to cattle, we go on to assume arguendo plaintiffs' claims arose from the act of flying a helicopter in an invasive but necessary manner to gather facts to present in surrounding litigation. However, even assuming each of plaintiffs' claims arose from protected conduct, defendants nevertheless fail to show the trial court erred in denying their motion on the second prong of the anti-SLAPP analysis.
If the moving defendant carries its burden in the first step with respect to any claim, "the burden shifts to the plaintiff at the second step to establish a probability it will prevail on the claim." (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420.) "To satisfy the second prong, 'a plaintiff responding to an anti-SLAPP motion must "'state[] and substantiate[] a legally sufficient claim.'" [Citation.] 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 submitted by the plaintiff is credited."'" (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 (Oasis).) "In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) As noted, the court considers "the pleadings[] and supporting and opposing affidavits." (§ 425.16, subd. (b)(2).) "We do not, however, weigh the evidence, but accept the plaintiff's submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law." (Park, supra, 2 Cal.5th at p. 1067.)
Moreover, "[p]erhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) "'We must indulge in every presumption to uphold a judgment, and it is defendant's burden on appeal to affirmatively demonstrate error-it will not be presumed. [Citation.]' [Citations.]" (People v. Tang (1997) 54 Cal.App.4th 669, 677.) Even on de novo review, "the appellant must frame the issues for us, show us where the superior court erred, and provide us with proper citations to the record and case law." (Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892, 913.)
In urging reversal of the trial court's second-prong finding, defendants do not address the elements of each of plaintiffs' three claims. Rather, they challenge the trial court's acceptance and reading of the various declarations cited in the portion of the written order addressing plaintiffs' probability of prevailing. Defendants argue the trial court should not have considered the flight data documents attached to the declaration of Craig Andrew because the documents were unsupported by competent testimony due to a lack of foundation and lack of any showing Andrew had the special knowledge to interpret that data. However, as plaintiffs point out and as the record confirms, defendants lodged no evidentiary objections to any declaration before the trial court ruled on their motion. Accordingly, defendants have forfeited any challenges to the admissibility of those declarations. (See People v. Dessauer (1952) 38 Cal.2d 547, 552 ["A waiver or failure to object to the admission of evidence precludes objection on appeal"]; Slauson, supra, 112 Cal.App.4th at p. 1014, fn. 4, p. 1029, fn. 11 [in anti-SLAPP appeal, deeming evidentiary objections to declarations waived for failure to obtain ruling on objections in the trial court].)
Defendants otherwise argue the trial court misread or ignored the declarations by Boswell's pilots, who provided flight path data and recollections that were in certain respects inconsistent with some of the flight observations described in the declarations of plaintiffs and their employees, including Andrew. However, this amounts to a challenge to the weight of the evidence put forth by plaintiffs; it does not defeat plaintiffs' prima facie showing as a matter of law. (See Oasis, supra, 51 Cal.4th at p. 820.)
Only with respect to the claims against Unruh do defendants assert a lack of evidence of any sort establishing a necessary element of the causes of action. Defendants challenge the trial court's finding that Unruh had "a directory role in the location and purpose of the subject flyovers," making him potentially personally liable for trespass and nuisance. Defendants argue there is no evidence Unruh directed the manner in which the pilots flew the helicopter, contending the only evidence was affirmatively to the contrary. Defendants cite only to their pilots' twin averments stating no one, including Unruh, "has ever asked [them] to harass cattle or other livestock in the [h]elicopter." That statement does not say Unruh never instructed the pilots where or how low to fly, and it is reasonable to infer he did-given his own declaration that the flights he took in that area "were done with the intention and the effect of [him] gathering information." (See Oasis, supra, 51 Cal.4th at p. 822 [the proper inquiry in an anti-SLAPP motion is whether the plaintiff proffers sufficient evidence for an inference, not whether there is direct evidence].) We are not persuaded by defendants' analogy offered at oral argument, likening Unruh to a customer in a ride-sharing vehicle whose driver speeds and swerves in navigating to the desired destination. The record supports an inference that Unruh was more than merely a hapless passenger on a reckless flight, given his personal interest in taking photographs of ground conditions (which would presumably be improved by flying lower), and given his managerial role within the company employing the pilots (defendant Boswell).
Neither party argues the trial court's subsequent ruling on the preliminary injunction bears upon the anti-SLAPP second-prong analysis. And at oral argument, defendants expressly argued that the preliminary injunction phase is not the proper point at which to assess the probability of prevailing for purposes of the anti-SLAPP second prong. We note the granting of a preliminary injunction has sometimes been held conclusive of a plaintiff's probability of prevailing, but we do not rest our decision as to defendant Boswell on this unasserted argument. (Cf. Slauson, supra, 112 Cal.App.4th at p. 1022; Thomas v. Quintero (2005) 126 Cal.App.4th 635, 664.) And as to defendant Unruh, the denial of a preliminary injunction does not foreclose the possibility of ruling in a plaintiff's favor on the second prong of an anti-SLAPP motion, due to the differing standards for each type of motion. (Thomas, at p. 664; Lam v. Ngo (2001) 91 Cal.App.4th 832, 843 [comparing standards].)
For the first time in their reply brief, defendants also belatedly argue plaintiffs cannot show a probability of prevailing on their demand for injunctive relief as phrased in the complaint-treated separately from the claims for trespass and nuisance. Even assuming defendants had argued this in their opening brief or in the trial court, a request for injunctive relief is not a "cause of action" or "claim" subject to the anti-SLAPP statute. (See Golden Gate, supra, 81 Cal.App.5th at p. 91 [noting a "third claim was for injunctive relief, and as such it [was] not a cause of action but instead a request for a remedy not subject to the anti-SLAPP statute"]; Wong v. Jing (2010) 189 Cal.App.4th 1354, 1360, fn. 2 [anti-SLAPP statute applies only to "causes of action," and injunctive relief is an equitable remedy, not a "cause[] of action for injuries"]; McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159 ["The nature of the relief sought does not determine the nature of the cause of action"]; see also Bonni, supra, 11 Cal.5th at p. 1010 [defining "each claim for relief" as "each act or set of acts supplying a basis for relief"].)
As none of defendants' arguments demonstrate reversible error in the trial court finding plaintiffs satisfied their burden at the second prong, we also affirm the order on that alternative ground, even assuming plaintiffs' claims arise from protected activity.
DISPOSITION
The order denying defendants' anti-SLAPP motion is affirmed. Plaintiffs shall recover their costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(1).)
WE CONCUR: LEVY, ACTING P.J. SMITH, J.