Opinion
G044588 Super. Ct. No. 30-2010-00378042
01-31-2012
LA HABRA EDUCATION ASSOCIATION, Plaintiff, Cross-defendant and Respondent, v. GOVERNING BOARD OF THE LA HABRA CITY SCHOOL DISTRICT, Defendant, Cross-complainant and Appellant.
Atkinson, Andelson, Loya, Ruud & Romo, John M. Rajcic, Mark R. Bresee and Paul Z. McGlocklin for Defendant, Cross-complainant and Appellant. Reich, Adell & Cvitan, Marianne Reinhold, Carlos R. Perez and J. David Sackman for Plaintiff, Cross-defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Derek W. Hunt, Judge. Affirmed in part and reversed in part. Motion for judicial notice. Denied.
Atkinson, Andelson, Loya, Ruud & Romo, John M. Rajcic, Mark R. Bresee and Paul Z. McGlocklin for Defendant, Cross-complainant and Appellant.
Reich, Adell & Cvitan, Marianne Reinhold, Carlos R. Perez and J. David Sackman for Plaintiff, Cross-defendant and Respondent.
* * *
INTRODUCTION
Plaintiff La Habra Education Association filed a petition for writ of mandate (the petition) which alleged, inter alia, that at the beginning of the 2009-2010 school year, defendant Governing Board of the La Habra City School District violated Education Code section 45028 and Labor Code sections 221 and 222 by unilaterally freezing the advancement of plaintiff's members on the salary scale. Plaintiff sought a writ of mandate directing defendant to comply with the above cited statutes and to "make its certificated employees whole for all compensation, benefits and interest owed to them for the 2009-2010 school year."
Defendant filed a cross-complaint containing claims for equitable indemnity, breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, unjust enrichment, and declaratory relief. Plaintiff moved under Code of Civil Procedure section 425.16 to strike the cross-complaint as a SLAPP (strategic lawsuit against public participation) suit (the anti-SLAPP motion). (All further statutory references are to the Code of Civil Procedure unless otherwise specified.) The trial court granted the anti-SLAPP motion and struck the cross-complaint.
We affirm in part and reverse in part. Plaintiff met its burden of demonstrating the gravamen of defendant's claims for equitable indemnity, breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, and unjust enrichment was directed at plaintiff's protected activity of filing the petition. As defendant did not meet its burden of establishing a probability of prevailing on those claims, we affirm the portion of the trial court's order granting the anti-SLAPP motion as to those claims.
As to the declaratory relief claim in the cross-complaint, however, plaintiff did not meet its burden of showing that it arose out of protected activity. We therefore reverse the portion of the trial court's order granting the anti-SLAPP motion as to the declaratory relief claim.
BACKGROUND
I.
THE PETITION
In June 2010, plaintiff filed the petition containing the following allegations against defendant. The petition alleged plaintiff is a labor organization that represents nonsupervisory certificated employees within the La Habra City School District, including approximately 240 regular classroom teachers, counselors, nurses, and specialists. Defendant is a local board that operates schools serving students in kindergarten through eighth grade.
The petition further alleged that at the beginning of the 2009-2010 school year, defendant "unilaterally instituted a 'step and column freeze,' thereby stopping all further movement by teachers along the existing salary schedule for the 2009-2010 school year." The petition explained, "'[s]tep' movement refers to a teacher's vertical advancement on the salary schedule resulting from an additional year of experience and service, while 'column' movement refers to horizontal advancement on the salary schedule due to the acquisition of additional educational units."
The petition stated: "As to its certificated employees, [defendant] kept all compensation the same for the 2009-2010 school year as it was for the prior school year" and placed new employees hired for that school year on "the same step as existing second-year employees so that their salaries did not universally comport with employee years of service or education." The petition further stated: "Additionally, more senior employees who had earned longevity bonuses during the 2008-2009 school year continued to receive those bonuses for the 2009-2010 school year, while employees who had sufficient experience with [defendant] to qualify for these bonuses during the 2009-2010 school year were not permitted to receive them. As a result, senior employees with similar training and experience were not paid uniformly during the 2009-2010 school year."
The petition alleged that although "Education Code Section 45028 requires that, unless [defendant] and the certificated bargaining unit agree to a salary schedule based on other criteria, certificated employees be classified on a salary schedule on the basis of uniform allowance for years of training and years of experience," defendant "[t]o date" had "made no effort to account for the resulting variation in experience and training." The petition further alleged in the petition that "beginning in about February 2010, [defendant] unilaterally deducted from teachers' wages, the cost of premiums for medical benefits. Prior to January 2010, [defendant] had paid such premiums in their entirety. Prior to instituting these deductions, [defendant] failed to obtain any written authorization or consent from individual teachers for these deductions from their salaries."
The petition contained a cause of action for violation of Education Code section 45028 by placing certificated employees on step schedules that were not consistent with their level of experience, and a cause of action for violation of Labor Code sections 221 and 222 "[b]y withholding monies from teacher[s'] pay checks to reimburse itself [defendant] for the cost of medical premiums," which withholdings "were not expressly authorized in writing and were not expressly authorized by a collective bargaining agreement."
Plaintiff sought the issuance of a writ of mandate or permanent injunction directing defendant to, inter alia, (1) "cease and desist from any future violations of the Education Code as it relates to the requirement of uniform pay, and for an Order directing that [defendant] observe and comply with all statutory obligations of the Education Code in all future action taken with respect to certificated employee compensation"; (2) "cease and desist from withholding the wages of certificated employee[s] without their express written permission"; and (3) "make its certificated employees whole for all compensation, benefits and interest owed to them for the 2009-2010 school year."
II.
THE CROSS-COMPLAINT
Defendant filed a cross-complaint against plaintiff, which contained claims for (1) equitable indemnity, (2) breach of contract, (3) breach of the implied covenant of good faith and fair dealing, (4) fraud, (5) unjust enrichment, and (6) declaratory relief. The cross-complaint alleged that because defendant is a public employer governed by the Educational Employment Relation Act (Gov. Code, § 3540 et seq.) (EERA), defendant is required to bargain collectively on all negotiable matters with the exclusive representative of each of its bargaining units. The administration of the EERA is vested in the Public Employment Relations Board which concluded that placement on the salary schedule and health and welfare benefit contributions fall within the scope of representation. The cross-complaint further alleged plaintiff is the exclusive representative for nonmanagement certificated employees within the La Habra City School District.
In the cross-complaint, defendant alleged that on June 28, 2007, it entered into a collective bargaining agreement (the CBA) with plaintiff, which covered all negotiable terms and conditions of employment for plaintiff's members. The CBA covered the 2006-2007, 2007-2008, and 2008-2009 school years, "but in accordance with the EERA and its own terms, remained in effect for subsequent years unless renegotiated." Specifically, article 9, section 1.7 of the CBA, addressing step and column movements on the salary schedule stated: "Annual step and column movements on the salary schedule shall be granted during the term of this Agreement. At the end of this Agreement, continuation of said annual movements for the 2009-10 school year shall not be automatic, but shall be the subject of bargaining between the parties." The cross-complaint asserted this term was consistent with Education Code section 45028 which "expressly permits school districts and labor associations to agree upon a salary schedule."
In reliance on article 9, section 1.7 of the CBA, defendant did not continue automatic step and column movements for the 2009-2010 school year. The cross-complaint further alleged that "[r]ather than negotiate the continuance of step and column movement in accordance with the agreed upon language, [plaintiff] filed a Petition for Writ of Mandate on June 3, 2010. [Plaintiff] alleged that, in enforcing the agreed upon contractual provision, [defendant] violated Education Code section 45028."
III.
THE TRIAL COURT GRANTS THE ANTI-SLAPP MOTION
AND DEFENDANT APPEALS.
Plaintiff filed the anti-SLAPP motion which challenged the cross-complaint in its entirety on the ground the cross-complaint arose out of protected conduct, namely, plaintiff's act of filing the petition and also plaintiff's participation in collective bargaining activities.
The trial court granted the anti-SLAPP motion and struck the cross-complaint. Defendant appealed.
MOTION FOR JUDICIAL NOTICE
Plaintiff filed a motion for judicial notice under Evidence Code section 452, in which it requested that this court take judicial notice of the "fact" that "teachers represented by [plaintiff] went on strike against [defendant] in December, 2010" (boldface omitted), as evidenced by two newspaper articles attached to the request. The Supreme Court has held that the truth of contents of a newspaper article "is not judicially noticeable." (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1065.) The subject of plaintiff's motion for judicial notice does not fall within any of the categories set forth in Evidence Code section 452. We therefore deny plaintiff's motion.
DISCUSSION
I.
SECTION 425.16 AND STANDARD OF REVIEW
Section 425.16 provides for a special motion to strike "[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." (§ 425.16, subd. (b)(1); see Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928 (Kajima) ["[t]he court can strike a single cause of action, while allowing other causes of action to remain"].)
"Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.'" (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) "'The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue.'" (Kajima, supra, 95 Cal.App.4th at p. 928.) To establish a probability of prevailing on a claim, "'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."'" (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.)
Causes of action contained in a cross-complaint are subject to the anti-SLAPP statute. (§ 425.16, subd. (h); see Kajima, supra, 95 Cal.App.4th at p. 927 ["'The SLAPP strategy also works even if the matter is already in litigation because the defendant/cross-complainant hopes to drive up the cost of litigation to the point where the plaintiff/cross-defendant will abandon its case or have less resources available to prosecute its action against the defendant/cross-complainant and to deter future litigation'"].) We note, however, that a cross-complaint "filed in response to, or in retaliation for, threatened or actual litigation is not subject to the anti-SLAPP statute simply because it may be viewed as an oppressive litigation tactic. No lawsuit is properly subject to a special motion to strike under section 425.16 unless its allegations arise from acts in furtherance of the right of petition or free speech." (Kajima, supra, at p. 924.)
We independently review the trial court's order granting the anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.) "'We consider "the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based." [Citation.] However, we neither "weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." [Citation.]' [Citation.]" (Id. at p. 326.) The anti-SLAPP statute is to be broadly construed. (§ 425.16, subd. (a).)
II.
EXCEPT FOR THE DECLARATORY RELIEF CLAIM, PLAINTIFF MET
ITS BURDEN OF DEMONSTRATING THE CONDUCT UNDERLYING
DEFENDANT'S CLAIMS AROSE FROM PROTECTED ACTIVITY
UNDER SECTION 425.16, SUBDIVISION (E)(1).
A party can meet the burden of making a threshold showing that a cause of action is one arising from protected activity by demonstrating the act underlying the challenged cause of action falls within one of the four categories identified in section 425.16, subdivision (e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) The category identified in section 425.16, subdivision (e)(1) involves statements or writings made "before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law." (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117-1118.)
For the reasons explained post, the claims contained in the cross-complaint, with the single exception of defendant's claim for declaratory relief, were based on protected activity within the meaning of section 425.16.
A.
Defendant's Claims for Equitable Indemnity, Breach of Contract, Breach of
the Implied Covenant of Good Faith and Fair Dealing, Fraud, and Unjust
Enrichment Were Based on Plaintiff's Conduct of Filing the Petition.
"'[W]here a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is "merely incidental" to the unprotected conduct [citations] . . . .' [Citation.] '[I]t is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAP[P] statute applies.' [Citation.] '"[A] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one 'cause of action.'" [Citation.] Conversely, a defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech or petitioning activity by the defendant. [Citation.] We conclude it is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.'" (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1369.)
As plaintiff's act of filing the petition in the trial court constitutes a writing made in a judicial proceeding within the meaning of section 425.16, subdivision (e)(1), such conduct constitutes protected activity. Following our review of the allegations of the cross-complaint, we conclude the gravamen of each of the claims contained in the cross-complaint (excepting the claim for declaratory relief) is directed at plaintiff's conduct of filing the petition.
The general allegations of the cross-complaint (all of which were incorporated into each cause of action contained therein) show the cross-complaint is generally directed at plaintiff's act of filing the petition. The general allegations assert (1) in 2008, plaintiff and defendant entered into the CBA which "cover[ed] all negotiable terms and conditions of employment" for plaintiff's members for the 2006-2007, 2007-2008, and 2008-2009 school years; (2) the CBA stated that at the end of the term of the CBA "[a]nnual step and column movements on the salary schedule" for the 2009-2010 school year would not be automatic, "but shall be the subject of bargaining between the parties"; (3) in reliance on article 9, section 1.7 of the CBA, defendant did not continue automatic step and column movements for the 2009-2010 school year; and (4) "[r]ather than negotiate the continuance of step and column movement in accordance with the agreed upon language, [plaintiff] filed a Petition for Writ of Mandate on June 3, 2010" and "alleged that, in enforcing the agreed upon contractual provision, [defendant] violated Education Code section 45028." (Italics added.)
No further factual allegations are set forth in support of the first cause of action for equitable indemnification. Instead, the cross-complaint reiterates the general allegation that plaintiff filed the petition "despite having agreed to the express language contained in Article 9, Section 1.7." The cross-complaint further states in support of the equitable indemnification claim: "If [defendant] is found in some manner responsible to [plaintiff], or to anyone else as a result of the incidents and occurrences described in [the petition], any liability would be based solely upon a derivative form of liability not resulting from [defendant's] conduct, but from a right of contract agreed to by [plaintiff] . . . ; therefore, [defendant] would be entitled to complete indemnity from [plaintiff] . . . ."
As defendant's equitable indemnification claim is entirely based on plaintiff's act of filing the petition, it arises out of protected conduct within the meaning of section 425.16, subdivision (e)(1). (See Raining Data Corp. v. Barrenechea, supra, 175 Cal.App.4th at p. 1368.)
Defendant's second cause of action in the cross-complaint is for breach of contract. The cross-complaint alleges plaintiff "materially breached [its] obligations under the [CBA] by filing a Petition for Writ of Mandate in lieu of negotiating the continuation of step and column movement." The third cause of action for breach of the implied covenant of good faith and fair dealing reiterates, "[i]n doing the acts herein described, [plaintiff] . . . ha[s] breached the covenants of good faith and fair dealing implied in the [CBA]." The gravamen of the breach of contract and breach of the implied covenant claims is therefore directed at plaintiff's act of filing the petition which, as discussed ante, constitutes protected activity under the anti-SLAPP statute.
The fourth cause of action in the cross-complaint is for fraud. In support of this claim, the cross-complaint alleges:
"25. On information and belief, before, up to, and including June 30, 2009, [plaintiff] . . . falsely and fraudulently represented to [defendant] that it[] would act in accordance with the [CBA].
"26. On or about June 3, 2010, [plaintiff] . . . abandoned the [CBA] and filed a Petition for Writ of Mandate accusing [defendant] of violating Education Code section 45028.
"27. Based on the unexplained refusal by [plaintiff] . . . to abide by the provisions of the [CBA], it is apparent that [plaintiff's] representations, as described herein, were in fact false.
"28. [Defendant] detrimentally and justifiably relied upon the false and fraudulent representations of [plaintiff] . . . in acting in accordance with the [CBA]."
The gravamen of the fraud claim is also directed at the act of filing the petition, which, the cross-complaint alleges, constitutes an act of abandonment of the CBA and evidence of plaintiff's fraudulent intent in entering the CBA. The fraud claim, therefore, arises from protected activity within the meaning of section 425.16.
In support of the fifth cause of action for unjust enrichment, the cross-complaint simply "repleads and incorporates" all of the allegations preceding it in the cross-complaint, and thereafter only adds that defendant "is informed and believes and thereon alleges that by reason of the foregoing acts herein alleged, [plaintiff] . . . stand[s] to become unjustly enriched at [defendant's expense in a substantial sum which is currently uncertain, but believed to be well in excess of this court's jurisdictional amount." As the allegations and claims preceding the unjust enrichment claim arise out of the protected conduct of filing the petition, for the same reasons, the unjust enrichment claim arises out of protected conduct.
In its opening brief, defendant relies on Kajima, supra, 95 Cal.App.4th 921, in support of its argument the trial court erred by granting the anti-SLAPP motion. Kajima, however, is distinguishable from this case.
In Kajima, supra, 95 Cal.App.4th at pages 924-925, the plaintiff sued the defendant city for breach of contract based on allegations the defendant failed to pay it for work it performed on a construction project. The defendant filed a cross-complaint alleging claims for breach of contract and breach of the implied covenant of good faith and fair dealing based on allegations related to the plaintiff's bidding practices and work performed on the project. (Id. at p. 925.) The defendant filed an amended cross-complaint that added 19 causes of action alleged against the plaintiff and others. (Ibid.) The amended cross-complaint alleged the plaintiff engaged in conduct including (1) intentional underbidding, (2) seeking additional compensation for work on the project based on false and/or inflated progress payment requests, (3) improperly identifying subcontractors and illegally substituting subcontractors on the project, (4) wrongfully collecting funds from the defendant for a security guard, (5) falsely certifying the participation of minorities and women in the project, (6) mail and wire fraud activities, and (7) submission of false and inflated construction claims and change orders. (Id. at pp. 929-930.) The trial court granted the plaintiff's anti-SLAPP motion as to one of the causes of action (referred to as the 12th cause of action), but denied the motion as to the other causes of action. (Id. at p. 926.)
The appellate court in Kajima, supra, 95 Cal.App.4th at pages 929-930, concluded the trial court did not err by denying the plaintiff's motion under the anti-SLAPP statute as to all of the defendant's claims but its 12th cause of action, because the gravamen of the claims was improper conduct in bidding, billing, and work processes. (Id. at p. 931.) Hence, the appellate court concluded, "[t]he amended cross-complaint alleges causes of action arising from [the plaintiff]'s bidding and contracting practices, not from acts in furtherance of its right of petition or free speech." (Id. at p. 929.)
The court in Kajima, supra, 95 Cal.App.4th at page 930, noted that "[i]t is only the 12th cause of action struck by the trial court that mentions [the plaintiff]'s specific act in filing the underlying complaint." In the instant case, unlike Kajima, all of defendant's claims in the cross-complaint, except the claim for declaratory relief, as discussed post, are not only based on plaintiff's act of filing the petition, but are entirely dependent upon that conduct.
In its opening brief, defendant argues the gravamen of its claims was that plaintiff "was under a continuing contractual obligation to negotiate salary schedule movement at the time [plaintiff] filed its Petition . . . , and that it did not do so." But, the cross-complaint does not allege that plaintiff refused to participate in the subject negotiations at all. Indeed, such an allegation would be in conflict with the declaration of defendant's chief negotiator, Draza Mrvichin, which was filed in opposition to the anti-SLAPP motion. In his declaration, Mrvichin described both parties' efforts in 2009 to negotiate step and column movements. According to Mrvichin, an impasse was declared on the issue after defendant repeatedly proposed a three-year freeze to step and column movements with unspecified "changes to longevity advancement," while plaintiff called for the removal of article 9, section 1.7 from the CBA altogether. Mrvichin further stated that "[s]ince the declaration of impasse, the parties have negotiated through a mediator in an attempt to reach an agreement, and have participated in the fact finding process. To date, no agreement has been reached. The collective bargaining process is continuing." Defendant's arguments that the claims in the cross-complaint are based on plaintiff's refusal to participate in negotiations and that plaintiff's act of filing the petition is merely an incidental reference are without merit.
Defendant also argues the anti-SLAPP motion was erroneously granted because defendant's claims were compulsory. In Raining Data Corp. v. Barrenechea, supra, 175 Cal.App.4th at pages 1373-1374, a panel of this court reiterated: "'A compulsory cross-complaint on a "related cause of action" against the plaintiff [citation] would rarely, if ever, qualify as a SLAPP suit arising from petition activity. By definition, a "related cause of action" is "a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint." [Citation.] The SLAPP suit is not "related" to the transaction or occurrence which is the subject of the plaintiff's complaint, but arises out of the litigation process itself.'" As we explained ante, we conclude defendant's claims for equitable indemnity, breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, and unjust enrichment arise out of the litigation process itself, namely, the act of filing the petition, and, thus, such claims were properly subject to the anti-SLAPP motion.
B.
Defendant's Declaratory Relief Claim Does Not Arise from
Protected Conduct.
In support of defendant's sixth cause of action for declaratory relief, the cross-complaint alleges: "An actual controversy has arisen and now exists relating to the rights and duties of the parties herein in that [defendant] contends that Article 9, Section 1.7 enabled it to discontinue step and column advancement pending negotiations; whereas, [plaintiff] . . . contend[s] that it[] may abandon its[] previously agreed upon contractual language." The cross-complaint further alleges defendant "desires a judicial determination of its rights and duties, if there are any, under the [CBA] and a declaration that [defendant] is entitled to discontinue step and column advancement pending negotiations."
We conclude defendant's declaratory relief claim is based on the actual, present controversy between the parties, regarding the enforceability of article 9, section 1.7 of the CBA. Our conclusion is supported by the allegations of the complaint and the allegations of the cross-complaint, and finds further support in Mrvichin's declaration detailing the breakdown of the parties' negotiations. "While [plaintiff]'s protected speech activities may have alerted [defendant] that an actual controversy existed" (City of Alhambra v. D'Ausilio (2011) 193 Cal.App.4th 1301, 1308), regarding the enforceability of article 9, section 1.7, the filing of the petition itself does not constitute the controversy. We further conclude the declaratory relief claim is not directed at any conduct protected by section 425.16.
That the declaratory relief claim generally incorporates the preceding allegations of the cross-complaint, including the allegations regarding plaintiff's filing of the petition, does not subject the declaratory relief claim to the anti-SLAPP statute. In Kajima, supra, 95 Cal.App.4th at pages 931-932, the appellate court explained that plaintiff "points to no authority suggesting that the mere incorporation by reference of a cause of action struck under the anti-SLAPP statute taints the other causes of action that do not allege acts taken in furtherance of the right to petition or free speech. Complaints generally incorporate prior allegations into subsequent causes of action. [Citation.] Because of this general practice, to strike an entire complaint based simply on the incorporation of prior allegations would unnecessarily expand the anti-SLAPP statute beyond acts taken in furtherance of the right of petition or free speech."
The trial court therefore erred by granting the anti-SLAPP motion as to the declaratory relief claim.
III.
DEFENDANT HAS FAILED TO CARRY ITS BURDEN OF DEMONSTRATING A
PROBABILITY OF PREVAILING ON THE MERITS OF THE CLAIMS ARISING OUT
OF PROTECTED ACTIVITY.
In opposition to the anti-SLAPP motion, defendant asserted that it would prevail on the merits of the claims contained in the cross-complaint. Defendant's opposition stated: "Finally, there is a strong likelihood that [defendant] will prevail on the merits of its claims. Each one of [defendant]'s causes of action in the Cross-Complaint surround [plaintiff]'s failure to adhere to material provisions under the plain meaning of Article 9, Section 1, Paragraph 1.7. [Citations.] The language used in Paragraph 1.7 could not be clearer; [plaintiff]'s avoidance of its obligations under the CBA lies at the heart of each and every one of the Cross-Complaint's causes of action."
Defendant's opposition neither addressed the elements of any of the causes of action contained in the cross-complaint nor asserted any legal authority or analysis regarding the enforceability of article 9, section 1.7 of the CBA. Furthermore, the opposition did not rely on any evidence presented by defendant to support the assertion that defendant would likely prevail on the merits of its claims.
One week before the hearing, defendant filed Mrvichin's declaration in support of its opposition to the anti-SLAPP motion. In that declaration, Mrvichin summarized the parties' failed negotiations.
In its opening brief, defendant cites Mrvichin's declaration in support of its argument it carried the burden of demonstrating a probability of prevailing on the merits of its claims. The opening brief does not analyze the elements of defendant's claims or any legal authority regarding the central issue—the enforceability of article 9, section 1.7 of the CBA.
Defendant argues Mrvichin's declaration constituted sufficient evidence to show a probability defendant would prevail on its claims because it shows the parties negotiated the CBA, including article 9, section 1.7, and that upon the expiration of the CBA term, plaintiff "refused to negotiate salary schedule advancement, insisting on removing Section 1.7 altogether." But, Mrvichin's declaration shows that plaintiff did participate in negotiations with defendant, refers to the parties' negotiations up until the impasse, and states that the parties are continuing to negotiate through a mediator. Plaintiff's failure to accept defendant's proposals does not show a breach of the CBA.
Defendant also argues the trial court's comments at the hearing on the anti-SLAPP motion reveal that the court failed to consider Mrvichin's declaration before ruling on the motion. As discussed ante, we review the order granting the anti-SLAPP motion de novo and, for the reasons we have explained, Mrvichin's declaration does not demonstrate the probability that defendant would prevail on its claims.
DISPOSITION
The portion of the order granting the anti-SLAPP motion as to the declaratory relief claim is reversed. The order is otherwise affirmed in its entirety. In the interests of justice, no party shall recover costs on appeal.
FYBEL, J.
WE CONCUR:
O'LEARY, ACTING P. J.
IKOLA, J.