Opinion
D058342 Super. Ct. No. 37-2009-00050733 CU-BT-NC
12-14-2011
MIRA MAR MOBILE COMMUNITY HOMEOWNERS ASSOCIATION, INC., et al., Plaintiffs, Cross-defendants and Respondents, v. KENDALL WEST, LLC, et al., Defendants, Cross-complainants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from orders of the Superior Court of San Diego County, Earl H. Maas, III, Judge. Affirmed.
Defendants, cross-complainants and appellants Kendall West, LLC (Kendall) and Tower Communities, LLC (Tower) appeal from orders denying their Code of Civil Procedure section 425.16 special motions to strike two pleadings: (1) the first amended complaint of plaintiffs, cross-defendants and respondents Mira Mar Mobile Community Homeowners Association, Inc. (Association) and Norman Kelley (collectively plaintiffs), and an amended supplement thereto; and (2) a cross-complaint filed by Lawrence D. Clem and numerous other individuals (collectively cross-complainants). Defendants' motions characterized these pleadings as containing causes of action arising from their conduct in issuing invoices for increased rent and communicating with mobilehome tenants and prospective buyers, which were assertedly matters of public interest, and prosecuting an appeal from a preliminary injunction.
All statutory references are to the Code of Civil Procedure unless otherwise indicated. Section 425.16 is commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. (See Oasis West Realty v. Goldman (2011) 51 Cal.4th 811, 815, fn. 1.)
We refer to the plaintiffs and cross-complainants together as respondents. The other individual cross-complainants are Teresa J. Doran, Phoebe Drachslin, William C. Drachslin, Marjorie Dunfee, Robert A. Dunfee, Keith Holloway, Kitty Holloway, Norm Kelley, Leroy J. Lewandowski, Catherine A. Martin, Charles E. Martin, Barbara McClusky, William J. McClusky, Bruce Mortimer, Gregory A. Mumper, Donna Munson, James Munson, David Nelson, Vicki Nelson, Oscar J. Perez, Henry Tong, Anita K. Vinson, Ruth C. Wilber, Harold A. Wilber, Catherine M. Wilson and Jeffrey D. Wilson.
In part, defendants contend that in denying their motions, the trial court misapplied the standards for section 425.16 motions on mixed claims, and erred by focusing on allegations of nonpetitioning activity to avoid application of the anti-SLAPP statute. They contend the commercial speech exception of section 426.17 does not apply because all of the challenged statements relate to pending litigation. Defendants ask us to hold that plaintiffs and cross-complainants cannot demonstrate a probability of prevailing on their claims.
We conclude section 425.16 applies to plaintiffs' second cause of action for intentional interference with prospective economic advantage and cross-complainants' first and second causes of action for intentional and negligent infliction of emotional distress, because those causes of action are based in part on protected activity, namely defendants' provision of a notice to homeowners and prospective unit purchasers regarding the pending litigation. However, we hold these causes of action are nevertheless exempt from section 425.16 because the notice includes commercial speech plainly falling within the meaning of section 425.17, subdivision (c). Accordingly, we affirm the orders denying defendants' section 425.16 motions to strike.
FACTUAL AND PROCEDURAL BACKGROUND
In assessing defendants' motions and setting out the background facts, we accept as true the evidence favorable to plaintiffs and cross-complainants. (Freeman v. Schack (2007) 154 Cal.App.4th 719, 727; Sycamore Ridge Apartments, LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1397.)
The First Amended Complaint
In February 2009, Association, a non profit corporation, and Norman Kelley, a tenant at the Mira Mar Mobile Community (hereafter the park), filed a first amended complaint against defendants. Plaintiffs alleged that defendants Kendall and Tower, respectively the owner and property manager of the park, improperly raised rents in violation of the Oceanside Rent Control Ordinance in an attempt to force tenants to remove their units from the park, which is a senior retirement community. They further alleged defendants announced new rules concerning the removal of existing units and certain models from the park that violated the Mobilehome Residency Law (MRL, Civ. Code, § 798, et seq.) as well as the rental agreements between Kendall and the park tenants. Plaintiffs alleged park tenants purchased units or moved units into the park in reliance on defendants' representations that their units could be sold in place if and when the tenant decided to vacate the park, and when they sold their units, the buyer would be able to occupy it provided he or she could prove credit worthiness. Plaintiffs also alleged they relied on defendants' representation that the only reason they would require removal of a unit would be to upgrade the park in accordance with the MRL.
Plaintiffs alleged defendants represented to prospective purchasers of existing units that all units were considered mobilehomes by Tower and Kendall for purposes of a tenancy even though most were technically recreational vehicles, and also required tenants to execute rental agreements identifying their units as mobilehomes. According to plaintiffs, tenants who had recently attempted to sell their units in place were prevented from doing so by defendants, because when the prospective purchaser met with defendants' representatives, they were informed they would pay space rent of $850 a month and would not be allowed to sell their unit in place.
These facts, along with the allegations making up each cause of action, are successively incorporated by reference into each cause of action. Based on these allegations, the first amended complaint purports to state causes of action for (1) unfair competition; (2) interference with prospective economic advantage; (3) violation of the MRL; (4) negligent infliction of emotional distress; (5) intentional infliction of emotional distress; (6) breach of contract; (7) fraud; (8) negligent misrepresentation; (9) declaratory relief; and (10) "injunction."
The Preliminary Injunction and Reversal on Appeal
Plaintiffs applied for and eventually obtained a temporary restraining order and, later, a preliminary injunction in part preventing defendants from increasing rents on RV and mobile home spaces to $850 per month, implementing the sales-in-place policy, and advertising rent increases to $850 per month to prospective buyers of recreational vehicles, park models and mobile homes in place at Mira Mar.
On March 30, 2010, this court reversed the preliminary injunction. (Mira Mar Mobile Community Homeowners Assn., Inc. v. Kendall West, LLC (Mar. 30, 2010,
D055119) [nonpub. opn.].) We held: (1) as to the resale policy, plaintiffs could not establish irreparable injury; (2) with regard to defendants' proposed rent increase, the trial court erred by neglecting to meaningfully consider and balance the relative hardships that would result by granting or denying the preliminary injunction; and (3) the "no advertising" component of the injunction was impermissibly vague and overbroad as well as an unconstitutional prior restraint.
We take judicial notice of our prior unpublished appellate opinion and appellate records in these matters. (Evid. Code, §§ 452, subd. (d) [judicial notice may be taken of court records], 459; Cal. Rules of Court, rule 8.1115(b)(1); Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1171-1173 [court may take judicial notice of prior unpublished opinions in related appeals on its own motion].)
The Amended Supplement
In June 2010, plaintiffs filed an amended supplement to the first amended complaint (the Amended Supplement), which was ordered filed and served as of March 2010. The Amended Supplement sought to add paragraphs 38.1 through 38.18 to the first amended complaint. In paragraphs 38.12 through 38.17, plaintiffs alleged that in January 2009, the court enjoined defendants from raising the rent of homeowners, but notwithstanding that injunction, defendants "proceeded to issue invoices to the Homeowners reflecting an increase in rent in violation of the Court's order and the provisions of the MRL . . . ." Plaintiffs alleged that "[d]efendants' sending out invoices reflecting an illegal rent due was an intentional violation of the MRL and the Court's preliminary injunction . . . [and those] actions were intended to cause severe emotional distress to the Homeowners, and did cause severe emotional distress . . . ." They further alleged that "[i]n 2009, the Court mandated the form of notice which Defendants were required to distribute to prospective buyers regarding this pending action" but, "[o]n information and belief, Defendants defied the Court's mandate . . . by providing notices which had been specifically rejected by the Court." Plaintiffs alleged that, "[o]n information and belief, Defendants provided the disapproved notices for the purpose of interfering with sales of mobilehomes by existing homeowners to prospective buyers, and to intentionally cause severe emotional distress to the Homeowners . . . ." Plaintiffs alleged: "The allegations set forth in Paragraphs 38.1 through 38.18 above are intended to be within the scope of all causes of action asserted in the First Amended Complaint, and the term 'prior paragraphs' as used in the First Amended Complaint is intended to include Paragraphs 38.1 through 38.18 inclusive."
The Cross-Complaint
Several days after plaintiffs filed the Amended Supplement, cross-complainants, who alleged they were individual owners and co-owners, filed a cross-complaint against defendants and other parties setting out causes of action for negligent and intentional infliction of emotional distress, fraud, and negligent misrepresentation. The background allegations of the cross-complaint are virtually identical to those in the first amended complaint, with the exception of paragraph 23, which adds a phrase, and paragraphs 44 through 50, which concern a long-form lease used by defendants beginning in March 2009 that was alleged to be unconscionable and in violation of the MRL, as well as other statutes. Cross-complainants alleged that as a direct result of defendants' conditioning mobilehome sales on execution of the long-form lease, tenants lost sales, feared future sales would be prevented, and suffered a loss in value of their homes. Paragraphs 51 through 56 of the cross-complaint are identical to paragraphs 38.12 through 38.17 of the Amended Supplement.
The Section 425.16 Motions to Strike
Defendants filed a section 425.16 special motion to strike the first amended complaint and the Amended Supplement, and a virtually identical motion to strike the cross-complaint. Pointing to the above-referenced allegations, defendants argued plaintiffs and cross-complainants were using the proceedings to punish them for engaging in " 'protected conduct,' " which they identified as communication with residents and potential residents at the park, and prosecuting the appeal from the preliminary injunction. In both motions, defendants argued that the causes of action were based on protected activity in that they "allege that Defendants' written and oral statements made to the public regarding rent increases and acts taken to challenge the preliminary injunction serve as the factual basis for their various causes of action." Defendants argued plaintiffs and cross-complainants could not demonstrate a probability of prevailing on their causes of action.
Respondents opposed the motions. With respect to the first amended complaint, plaintiffs pointed out defendants' motion was untimely because it was not filed within 60 days of the pleading under section 425.16, subdivision (f). As to both motions, respondents argued the alleged conduct was commercial speech under section 425.17, subdivision (c), and thus excluded from the statute's application. Respondents conceded that part of their claims arose out of the defendants' communications with residents and potential residents at the park, but asserted none of the challenged statements concerned a public person, conduct that could directly affect a large number of people beyond the direct participants, or a topic of widespread public interest. They maintained defendants had not shown any of their claims arose out of defendants' prosecution of the appeal from the preliminary injunction. They further argued that even if portions of the Amended Supplement and the cross-complaint encompassed protected speech, the gravamen of those pleadings implicated unprotected speech and conduct.
Cross-complainants also submitted declarations from several homeowners. One of those declarations was from Joanne Ernst, who recounted her and her husband's efforts to sell their unit at declining prices. Ernst stated that toward the end of January 2010, she found a buyer who seemed interested in buying at $42,000, and as a result asked the park manager for a copy of the notice they were providing to prospective buyers regarding the pending lawsuit. Ernst attached the notice, and stated it "is a true copy of the document that [park manager Louise] Wiig gave me as an example of the notice that she is giving to prospective buyers in the park." The notice, entitled "Notice to Selling Homeowner/Prospective Homeowner" and addressed to "Selling Homeowner and Prospective Homeowner" (hereafter the notice), states in part: "Unfortunately, litigation has been filed against the Mira Mar Mobile Community . . . which clouds various issues pertaining to the space at issue, Space No. ___. [¶] . . . [¶] You are cautioned specifically to request from the seller of the unit a copy of the operative pleadings in the underlying litigation, including specifically, but without limitation, a preliminary injunction ('PI') entered by the court, the various points and authorities supporting and opposing the requested relief, the complaint, responsive pleadings (if filed), cross-complaints (if any), and documents pertaining to any appellate court relief which may have been initiated."
The notice also contains the following warning appearing in boldface print and all capitals: "Warning: Your are [sic] strongly advised to consult with counsel of your own choosing prior to entering into any transaction affecting this space. Pending litigation may affect (a) the ability to maintain the unit on the space (if the unit is not a mobilehome for purposes of the relevant code sections), and the litigation may also affect the rent that may be charged or collected either in the future or retroactively."
In reply, defendants argued in part the alleged protected conduct was not commercial speech because the speech was not made for the purpose of obtaining approval for, promoting or securing leases, but was intended only to serve as notice of rent increases and the new resale policy as of October 2011. They argued their activity was privileged under Civil Code section 47.
The trial court denied both motions. It found defendants had not met their initial burden of proof; that while the conduct referenced in paragraphs 38.14, 38.15 and 38.16 of the Amended Supplement might be protected speech and so not subject to prior restraint, the conduct was not protected speech under section 425.16, subdivision (b)(1). It ruled further that the gravamen of the first amended complaint was not subject to the statute, and thus declined to strike the entire first amended complaint based on the Amended Supplement's allegations. With regard to the cross-complaint, the court ruled the allegations of paragraphs 51 through 56 were " 'merely incidental' " or " 'collateral' " to the cross-complaint's allegations as a whole.
Defendants appeal from the court's orders.
DISCUSSION
I. Legal Principles
"A special motion to strike is a procedural remedy to dispose of lawsuits brought to chill the valid exercise of a party's constitutional right of petition or free speech. [Citation.] The purpose of the anti-SLAPP statute is to encourage participation in matters of public significance and prevent meritless litigation designed to chill the exercise of First Amendment rights. [Citation.] The Legislature has declared that the statute must be 'construed broadly' to that end." (Fremont Reorganizing Corp. v Faigin (2011) 198 Cal.App.4th 1153, 1165.)
Under section 425.16, subdivision (b)(1), a cause of action is subject to a special motion to strike if the cause of action arises from any act of the defendant in furtherance of the defendant's constitutional right of petition or free speech in connection with a public issue, unless the court determines the plaintiff establishes a probability of prevailing on the claim. (§ 425.16, subd. (b)(1).) An " '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' " is defined by statute to include "(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).) If the defendant shows the cause of action arises from a statement described in subdivisions (e)(1) or (e)(2) of section 425.16, the defendant is not required to separately demonstrate that the statement was made in connection with a "public issue." (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113.)
"The analysis of an anti-SLAPP motion thus involves two steps. 'First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one "arising from" protected activity.' " (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 819.) The mere fact an action is filed after protected activity takes place, or that the cause of action arguably may have been " 'triggered' " by protected activity, does not mean the action arose from that activity within the meaning of section 425.16. (In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) " 'In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.' " (Ibid.) The court looks to " 'the gravamen or principal thrust' of the action." (Id. at pp. 477-478, citing Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 193.) The fact that "protected activity may lurk in the background — and may explain why the rift between the parties arose in the first place — does not transform a . . . dispute into a SLAPP suit." (In re Episcopal Church Cases, at p. 478.)
" 'If the court finds [the threshold] showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.] '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.' " (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at pp. 819-820.)
"We review an order granting or denying a motion to strike under section 425.16 de novo." (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 820.)
II. Procedural Challenges
Preliminarily, we address procedural challenges raised by respondents. They argue first that as to the first amended complaint, defendants' motion to strike was untimely, and that section 425.16, which applies to "a cause of action," cannot apply to a supplement to a complaint. They maintain defendants' section 425.16 motion was improper because the Amended Supplement did not contain any new causes of action. They further argue defendants waived their arguments, or are estopped from bringing them, by not raising them below. A. Application of Section 425.16 to the Amended Supplement
Though respondents failed to challenge the general application of section 425.16 to the Amended Supplement in opposition to defendants' motions (apart from the motions' timeliness), we may nevertheless consider the matter because we affirm the trial court's orders if correct on any theory. (Bailon v. Appellate Division (2002) 98 Cal.App.4th 1331, 1339.) Because our review is de novo, we address the issue even though the trial court did not. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615-616.)
Respondents' arguments misunderstand the nature and effect of a supplemental pleading. Such pleadings are authorized by section 464, which provides that a plaintiff "may be allowed . . . to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer." A supplement cannot state any new causes of action, the additions must relate to the same general set of facts. (Earp v. Nobmann (1981) 122 Cal.App.3d 270, 286-287, disapproved on other grounds in Silberg v. Anderson (1990) 50 Cal.3d 205, 212-213; see Young v. Matthew Turner Co. (1914) 168 Cal. 671, 675 [a supplement is not allowable to substitute a new and distinct cause of action]; Flood v. Simpson (1975) 45 Cal.App.3d 644, 647; Imperial Land Co. v. Imperial Irr. Dist. (1916) 173 Cal. 668, 672.) A supplemental pleading does not supersede the original complaint but rather "adds new allegations to be considered in conjunction with the original." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 6:795, p. 6-198; see also 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1246, p. 690.)
Respondents' contention fails because a court ruling on a section 425.16 motion examines the acts underlying the causes of action, specifically, whether the "defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, italics omitted.) Where, as here, the plaintiff has filed a supplemental pleading importing new substantive facts material to the causes of action into the original complaint, we see no reason why a section 425.16 motion cannot address the alleged new acts imported into the original complaint's causes of action to determine if those causes of action, as supplemented, are in whole or in part based on protected activity. (See, e.g., Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110, 1115-1116 [section 425.16 motion filed within 60 days after service of substantive amendment was timely because substantive amendment made the filing a first amended complaint].) Other than citing section 425.16's general reference to "[a] cause of action," which does not convince us, respondents provide no authority to the contrary.
As for timeliness, section 425.16, subdivision (f) provides that a special motion to strike "may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper." The statute states that the word " 'complaint' " includes 'cross-complaint' and 'petition.' " (§ 425.16, subd. (h).) Here, the motions were filed on August 2, 2010, within 60 days of the respective June 7, 2010 and June 11, 2010 service dates of the Amended Supplement and cross-complaint. B. Forfeiture
Respondents contend defendants waived any argument as to sufficiency of their threshold showing because they did not rely on subdivision (e)(2) of section 425.16 in their motion below. Respondents point out that defendants' only contention was that the causes of action were based on conduct in connection with a public issue or issue of public interest under subdivision (e)(3).
It is true that defendants' argument in support of their motions to strike did not specifically reference subdivision (e)(2) of section 425.16, relating to statements made in connection with an issue under consideration or review by a judicial body. After setting out the language of section 425.16, subdivision (e) and general legal principles related to their motions, defendants argued in part: ". . . Plaintiffs' 'Amended Supplement to the First Amended Complaint' specifically states that Plaintiffs base their causes of action on Defendants' protected activity . . . . Plaintiffs allege that Defendants' written and oral statements made to the public regarding rent increases and acts taken to challenge the preliminary injunction serve as the factual basis for their various causes of action. [¶] Defendants' statements are the very definition of '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.' . . . Information regarding rent increases and the ability to resell residences are issues of public interest because these matters affect people's financial and property rights. Defendants' speech regarding these important matters must therefore be considered 'protected conduct.' . . . Indeed, the Court of Appeal held these very actions at issue were permissible, and found the preliminary injunction to be an unlawful prior restraint. [¶] Plaintiffs are attempting to use Defendants' 'protected conduct' as a basis for establishing liability in their lawsuit. Therefore, each of Plaintiffs' causes of action 'arise' from protected activity and are subject to the anti-SLAPP statute." (Bold text omitted.) Defendants' motion to strike the cross-complaint set forth a virtually identical argument.
On appeal, defendants do not repeat their arguments concerning the effect of the granting of the preliminary injunction and our prior opinion.
"It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal." (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117.) In other words, issues and theories not properly raised in the trial court are forfeited on appeal. (DiCola v. White Bros. Performance Products, Inc. (2008) 158 Cal.App.4th 666, 677; City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685.)
An exception to this rule applies, however, when " 'a question of law only is presented on the facts appearing in the record . . . .' " (Ward v. Taggart (1959) 51 Cal.2d 736, 742; accord, Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1207; see also City of San Diego v. D.R. Horton San Diego Holding Co., Inc., supra, 126 Cal.App.4th at p. 685.) Nevertheless, " ' "if the new theory contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial the opposing party should not be required to defend against it on appeal.(Strasberg v. Odyssey Group, Inc. (1996) 51 Cal.App.4th 906, 920; see City of San Diego v. D.R. Horton Holding Co., Inc., at p. 685.)
As respondents here acknowledge, the background facts and circumstances of this case are not in dispute. In advancing their forfeiture argument, they do not explain whether defendants' contentions regarding subdivision (e)(2) of section 425.16 implicate facts that were not presented to the trial court. Defendants' notice is in the record before us, and as we explain below (part III, post), it expressly references the pending litigation. We hold under the circumstances, the question of whether the notice falls within the category of statements made in connection with an issue under consideration or review by a judicial body is one of law that is cognizable on appeal.
We conclude, however, that defendants have forfeited their appellate arguments that the Amended Supplement and cross-complaint seek to impose liability based on statements on a "public issue" and matters of "public interest" falling within section 425.16, subdivisions (b)(1) and (e)(3). Defendants below cursorily argued, without supporting case authority, that the rent increases and ability to resell residences were issues of public interest "because these matters affect people's financial and property rights." On appeal, defendants make an entirely different point, for the first time comparing the circumstances to those in various homeowner association cases, including Foothills Townhome Association v. Christiansen (1998) 65 Cal.App.4th 688, 695-696, abrogated on other grounds in Navellier v. Sletten (2002) 29 Cal.4th 82, 91 (Navellier); Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 (Damon), and Ruiz v. Harbor View Community Association (2005) 134 Cal.App.4th 1456 (Ruiz). They maintain the claims at issue relate to matters "affecting a broad segment of the Mira Mar community" and concern matters of public importance because changes to the park rules affect, and are matters of interest, to the entire Mira Mar community.
These arguments present factual questions that are open to controversy, including whether or not the entire Mira Mar community, or some other subset of it, is subject to the rent increases and resale policies. Even assuming the Mira Mar community is large enough to compare to the over 3000 members of the homeowners association in Damon, the question remains whether the statements or writings at issue involve "an inherently political question of vital importance to each individual [Association member] and to the community as a whole." (Damon, supra, 85 Cal.App.4th at p. 479.) These questions raise factual issues that plaintiffs and cross-complainants had no opportunity to address or rebut below. Thus, forfeiture is especially appropriate: "A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant." (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1350, fn. 12.)
Though we need not address the merits, we would conclude in any event that defendants have not demonstrated the allegations at issue fall within the category of protected statements or writings within section 425.16, subdivision (e)(3). Section 425.16, subdivision (e)(3) provides that the protections afforded by the statute apply to "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 . . . ." (Italics added.) "A 'public forum' is ' "traditionally defined as a place that is open to the public where information is freely exchanged." ' [Citation.] 'A public forum is a place open to the use of the general public " 'for purposes of assembly, communicating thoughts between citizens, and discussing public questions.(Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 846.) Defendants do not address whether the alleged wrongful statements and/or writings were made in a place open to the public or in a public forum, and we are unable to resolve the question from the pleadings alone. Plaintiffs' allegations are simply that defendants sent invoices for "illegal rent due" to existing homeowners, and also provided notices to prospective purchasers. The allegations do not shed light on the method and place of distribution, or the scope of distribution, i.e., whether the invoices and notices were sent to all, or some subsection, of the homeowners and prospective purchasers.
As for whether the statements and writings are "in connection with a matter of public interest" (§ 425.16, subd. (b)(1)), we decline to hold that the "public interest" requirement is met by the mere fact that the matters at hand involve a community organization. (Accord, Turner v. Vista Pointe Ridge Homeowners Association (2009) 180 Cal.App.4th 676, 687.)
III. Defendants' Threshold Showing
Citing authorities discussing so-called "mixed claims," defendants contend they satisfied their threshold showing that plaintiffs' and cross-complainants' causes of action arise out of protected activity because parts of those causes of action — encompassed in paragraphs 38.15 through 38.17 of the complaint and paragraphs 54-56 of the cross-complaint — seek to impose liability based on defendants' distribution of notices discussing the pending litigation and the preliminary injunction. Defendants argue their acts of distributing the notices fall within "any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body" and thus constitute protected activity under subdivision (e)(2) of section 425.16. A. The Allegations Concerning Defendants' Provision of the Notice Involve Protected Activity under Section 425.16, Subdivision (e)(2)
We agree paragraphs 38.16 through 38.17 and paragraphs 54 through 56, respectively, of plaintiffs' and cross-complainants' pleadings allege acts falling within the category of section 425.16, subdivision (e)(2). These paragraphs unambiguously state that defendants sought to interfere with plaintiffs' and cross-complainants' prospective economic advantage and intentionally inflict emotional distress by providing the prospective buyers notice of the pending litigation. The purpose of the notice was plainly to advise homeowners and prospective buyers of the pending litigation, it expressly referred to the litigation, and it is "unquestionably 'in connection with' judicial proceedings" within the meaning of section 425.16, subdivision (e)(2). (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5-6 [alleged defamatory statements in letter sent to residents of a homeowners association referred to underlying litigation, and, having a purpose of informing members of the association of pending litigation involving the association, was unquestionably in connection with judicial proceedings]. These allegations are incorporated by reference into all of the causes of action.
However, we are not convinced the inclusion of allegations concerning the notice renders all of the causes of action subject to defendants' motions. As we have explained above, where the foundation for the claim — the cause of action's " 'gravamen or principal thrust' " (In re Episcopal Church Cases, supra, 45 Cal.4th at p. 477) — is not protected activity, section 425.16 will not apply. "The apparently unanimous conclusion of published appellate cases is that 'where 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 protected conduct.' " (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672, citing Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103; see Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 802; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1245; Martinez v. Metabolife International, supra, 113 Cal.App.4th at p. 188.) "[W]hen 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." (Martinez, at p. 188.)
In assessing each cause of action or claim, "we disregard the labeling of the claim [citation] and . . . assess the principal thrust by identifying '[t]he allegedly wrongful and injury-producing conduct . . . that provides the foundation for the claim.' [Citation.] If the core injury-producing conduct upon which the plaintiff's claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute." (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272; see also Fremont Reorganizing Corp. v. Faigin, supra, 198 Cal.App.4th at p. 1168.) We turn to the question of which of the causes of action have as their thrust or gravamen protected petitioning activity. B. Plaintiffs' Cause of Action for Unfair Competition
Plaintiffs incorporate all of their prior paragraphs into their first cause of action for unfair competition, and they further allege: "Pursuant to this cause of action, Plaintiffs seek an injunction to prevent Kendall and Tower from raising the rent for space rented to Tenants and denying Tenants right [sic]to sell their units in place to new Tenants who can also sell the unit in place."
The specific acts of wrongdoing underlying plaintiffs' cause of action for unfair competition are defendants' efforts to raise rent assertedly in violation of rent control laws, and defendants' adoption of the rules concerning selling units "in place," which plaintiffs allege violated the MRL and their rental agreements with the tenants. Our examination of the pleadings and the opposing papers (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 79), reveals that liability for unfair competition is not directly based on defendants' provision of notices regarding the pending litigation to present or prospective purchasers. We conclude that even though the allegations concerning the notices, which involve protected conduct, were incorporated into the unfair competition cause of action, those acts are collateral or incidental to the unprotected conduct of announcing space rent increases on existing homeowners, changing park rules concerning sales in place, informing new tenants of the increased rent requirements, or advising prospective purchasers of the new rent and sales rules. C. Plaintiffs' Cause of Action for Violation of the MRL
Plaintiff's third cause of action is one brought only by Association against defendants for violation of the MRL. In support of that cause of action, Association incorporates the prior paragraphs and alleges:
"48. Kendall and Tower violated the [MRL] by demanding existing units that are recreational vehicles or park models be removed when a buyer of those units terminates their tenancy and by raising the existing space rent in violation of existing rent control ordinances.
"49. Kendall and Tower violated the [MRL] by improperly attempting to increase rents in violation of Civil Code, section 798.21[, subdivision] (f).
"50. Kendall and Tower violated the [MRL] by not advising existing tenants and prospective new tenants of their right to rent for a period not exceeding 12 months."
As with the unfair competition cause of action, the imported allegations of protected activity from the Amended Supplement do not alter the gist of this cause of action, which is defendants' assertedly wrongful increase in rents and demands that specified existing units be removed under certain circumstances, as well as their failure to advise tenants of the above-referenced rental rights. None of these acts involve protected activity, and thus we conclude defendants have not shown this cause of action arises from protected speech or petitioning activity. D. Plaintiffs' Cause of Action for Breach of Contract
In their sixth cause of action for breach of contract, plaintiffs incorporate the prior paragraphs and allege: "Tenants rental agreement [sic] with Kendall and Tower specifically provides for the only contractual basis that permits Kendall and Tower to require the removal of a unit from Mira Mar. That condition being that Kendall and Tower are upgrading the entire park. Such upgrading requires a published plan for the upgrade of the park. No such upgrade plan has been published by Kendall or Tower. . . . Plaintiffs contend that the park rules should be limited to safety and quite [sic] enjoyment. Kendal [sic]and Tower contend that the park rules can modify the contractual relationship of the parties."
We conclude that the gravamen of this cause of action is defendants' alleged conduct in breaching the tenants' rental agreement by changing the park rules, and not their actions in providing the protected notice to prospective tenants. (See Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108, 1118 ["the gist of plaintiff's complaint is not that defendant did something wrong by acts committed during the course of the underlying federal action, but rather that defendant did something wrong by breaching the settlement agreement"]; Wang v. Wal-Mart Real Estate Business Trust, supra, 153 Cal.App.4th at p. 808 [the "alleged improper conduct does not arise from . . . petitioning activities" but instead from defendant's "conduct in carrying out its contractual duties"].) We conclude the court did not err when it denied defendants' section 425.16 motion with regard to the sixth cause of action for breach of contract. E. Plaintiffs' Causes of Action for Fraud/Negligent Misrepresentation
In support of their seventh fraud cause of action, plaintiffs incorporate all of the prior paragraphs, and allege:
"67. Kendall and Tower represented to Tenants that they would be allowed to sell their units in place under the existing rent control ordinances.
"68. Kendall and Tower stated in writing that Tenants would be allowed to sell their units in place unless removal was pursuant to a 'park upgrade' as provided for in the [MRL].
"69. Kendall and Tower insisted that new Tenants purchase specific Park Models because those were the units that qualified for rent control and were the units that Kendall and Tower would allow to be sold in place pursuant to the rental agreement.
"70. Kendall and Tower represented to Tenants that they could make expensive additions and alterations to their units and approved such additions and alterations. Kendall and Tower represented to Tenants that the cost of those additions and alterations would be recoverable because the units could be sold in place with the additions and alterations.
"71. Kendall and Tower represented to Tenants that they would pay the rent currently being paid adjusted pursuant to the Rent Control Ordinance in effect."
Plaintiffs add the following allegations to their eighth cause of action for negligent misrepresentation: "Defendants had a duty to use reasonable care in making representations to Tenants about their ability to sell their homes in place and the application of the Oceanside Rent Control Ordinance. [¶] . . . Defendants had no reasonable basis for making the representations alleged herein by Defendants that Tenants would be allowed to sell their units in place and that their rent would be subject to the rent control ordinance. Therefore, Defendants and each of them breached their duty of reasonable care in making the representations alleged herein."
As with the foregoing causes of action, we conclude plaintiffs' allegations in the Amended Supplement are collateral and incidental to the main claim, which concerns representations by defendants relating to their assertedly improper space rent increases and new sales rules that are alleged to violate the MRL and existing rental agreements. The court did not err by denying defendants' section 425.16 motion with regard to the seventh and eighth causes of action for fraud and negligent misrepresentation. F. Plaintiffs' Causes of Action for Declaratory Relief and Injunction
We reach the same conclusions with respect to plaintiffs' ninth and tenth causes of action for declaratory relief and injunction. In those, plaintiffs seek an injunction "to prevent Kendall and Tower from increasing the space rent and from requiring the removal of units as alleged herein" and also allege a controversy regarding "Kendal [sic] and Tower's attempts to modify the rental agreement through unilaterally changing the park rules and inserting provisions that attempt to alter terms of the rental agreement" and "Kendall and Tower's right to increase rents." Plaintiffs allege: "Kendall and Tower contend that they may amend and change the park rules to contain provisions that modify the contract terms of the integrated rental agreement. Tenants contend that the park rules should be limited to safety and quite [sic] enjoyment of the park. [¶] . . . Kendall and Tower contend that a rent increase on many of the park homes is permitted pursuant to Civil Code, section 798.21. Tenants contend that Civil Code, section 798.21 is inoperative because of Civil Code, section 798.21(f)."
Again, these claims are not based on the defendants' act of providing the notice pertaining to the present litigation to prospective tenants, and thus they do not arise from protected speech or petitioning activity. G. Cross-Complainants' Causes of Action for Fraud and Negligent Misrepresentation
In support of cross-complainants' third and fourth causes of action for fraud and negligent misrepresentation, cross-complainants incorporate all prior paragraphs and include the same allegations as plaintiffs' causes of action in their first amended complaint. As a result, we conclude for the reasons expressed above (part III(E), ante), the court did not err in holding that defendants did not demonstrate these causes of action fell within section 425.16. H. Plaintiffs' and Cross-Complainants' Causes of Action for Interference with Prospective Economic Advantage and Infliction of Emotional Distress
We reach a different conclusion with respect to plaintiffs' second cause of action for interference with prospective economic advantage; plaintiffs' fourth and fifth causes of action for intentional and negligent infliction of emotional distress; and cross-complainants' first and second causes of action for intentional and negligent infliction of emotional distress.
In both the Amended Supplement and cross-complaint, respondents allege that in providing the "disapproved notice" to prospective purchasers, defendants acted with the purpose of interfering with sales of mobilehomes and to intentionally cause severe emotional distress to the homeowners, which caused such distress and resulted in lost home sales. In our view, these allegations by themselves may form the basis for the interference and emotional distress causes of action, and thus are not merely incidental or collateral to those causes of action.
This was the analysis of the court in Haight v. Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1550-1553.) In Haight, the court held that if the defendant shows the cause of action could be based solely on "nonincidental protected activity," it satisfies the first prong of section 425.16, even if the cause of action includes other allegations of nonprotected activity and could also be based solely on any of its allegations of nonprotected activity. (Haight, at p. 1551 & fn. 7.) In Haight, a cause of action alleging breach of fiduciary duty satisfied the first threshold test of section 425.16, even though only two of 16 factual bases of the cause of action targeted protected activity. (Haight, at pp. 1544-1545, 1548-1553.) The court explained that the two subparagraphs "could each be the sole and adequate basis for liability under the cause of action, even if [the plaintiff] could not prove any of the other subparagraphs." (Id. at p. 1551.) It rejected the plaintiff's argument that the two allegations out of sixteen constituted only "a comparatively small proportion of the wrongdoing alleged," stating that the statute's intent to deter lawsuits brought primarily to chill the valid exercise of First Amendment rights did not suggest a court needed to make a "quantitative comparison" of allegations of protected versus nonprotected activity. (Id. at p. 1552.)
We adopt the Haight court's analysis here. The causes of action for intentional interference with prospective economic advantage and intentional and negligent infliction of emotional distress could be based solely on protected activity: defendants' provision of the allegedly incorrect notices to homeowners and prospective purchasers informing them of the pending litigation. For this reason, we must conclude that for these causes of action, defendants met their burden under the first prong of section 425.16.
IV. Application of Commercial Speech Exemption of Section 425.27, Subdivision (c)
Having concluded that some of respondents' causes of action fall within section 425.16 because they are based on defendants' protected act of providing a notice to selling homeowners and prospective purchasers that concerns the litigation, we turn to a question the trial court did not reach: whether those causes of action are nevertheless exempt from section 425.16 because defendants' acts in that respect fall within the commercial speech exemption provided in section 425.17, subdivision (c).
Section 425.17, subdivision (c) provides: "Section 425.16 does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person if both of the following conditions exist: [¶] (1) The statement or conduct consists of representations of fact about that person's or a business competitor's business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person's goods or services, or the statement or conduct was made in the course of delivering the person's goods or services. [¶] (2) The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer. . . . notwithstanding that the conduct or statement concerns an important public issue."
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Respondents contend the commercial exemption applies because: (1) defendants' primary business is the rental of spaces for mobilehomes and providing utilities, community facilities, maintenance, landscaping, security and other services; (2) the notices contained representations of fact about the amount of rent that the park intended to charge new owners; and (3) the statements were made during negotiations with potential buyers who sought to obtain approval of their tenancies and secure leases. Defendants of course argue the exemption does not apply, comparing the circumstances to those in Contemporary Services Corporation v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043. A. Governing Standards
In Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12 (Simpson), the California Supreme Court explained that section 425.17, subdivision (c) exempts a cause of action arising from commercial speech from the anti-SLAPP law when "(1) the cause of action is against a person primarily engaged in the business of selling or leasing goods or services; (2) the cause of action arises from a statement or conduct by that person consisting of representations of fact about that person's or a business competitor's business operations, goods, or services; (3) the statement or conduct was made either for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person's goods or services or in the course of delivering the person's goods or services; and (4) the intended audience for the statement or conduct meets the definition set forth in section 425.17[, subdivision] (c)(2) [i.e., an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer]." (Simpson, 49 Cal.4th at p. 30.) It emphasized that the "commercial speech exemption . . . 'is a statutory exception to section 425.16' and 'should be narrowly construed.' " (Simpson, at p. 22.) The court also held the plaintiff, Simpson, had the burden of establishing the exception notwithstanding the two-step analysis of section 425.16. (Simpson, at p. 24.) B. Standard of Review
Defendants did not present contrary evidence to dispute Ernst's declaration presented by respondents, in which Ernst stated the park manager gave her a copy of defendants' notice as an example of the notice provided to prospective buyers at the park. Defendants simply argued in their reply points and authorities that the speech there was intended to serve as notice of the rent increases and resale policy, and was not made for the purpose of obtaining approval for, promoting, or securing leases. Given the absence of disputed issues of fact, we review applicability of the commercial speech exception independently. (Simpson, supra, 49 Cal.4th at p. 26.) C. Analysis
As summarized above, the notice provided by defendants in this case included information and warnings concerning the pending litigation to selling homeowners and prospective purchasers. Defendants' notice goes on, however, to describe the process of purchasing a unit in the park; inform homeowners and prospective purchasers that they needed to follow the park's protocol for tenancy applications; summarize the park's protocol; and advise the recipient concerning certain requirements under the MRL for incoming homeowners and sellers, including MRL requirements for advance written notice to the park of the homeowner's desire to sell his or her unit. In part, the notice states: "As you know, the process for purchasing any unit in the park is commenced by filling out a fully completed application for tenancy ('Application'). We urge you to be careful in being certain that you fully and completely complete the Application and that you provide all required backup documentation, since management requires this in order to be able to determine whether to accept or reject the prospective purchaser of the unit. . . . [¶] . . . For your information, pursuant to [Civil Code section] 798.74, after receiving all of the information requested from the prospective homeowner, the application will be processed within 15 business days. Within that 15 business day time period, the Park Management will notify the seller and the prospective homeowner, in writing, of either acceptance or rejection of the application, and the reason if rejected. If Park Management rejects the prospective homeowner, then the credit reporting fee paid by the prospective homeowner will be returned within 30 days of the rejection. If the prospective homeowner is approved, but fails to enter into a tenancy with the Park, then the Park will retain the credit fee paid by the prospective homeowner."
The notice concludes: "If you are a prospective purchaser, please note that there is mobilehome park rent control in the City of Oceanside, that the Park contends that the rent control ordinance is illegal and unconstitutional in a number of respects, and that the Park reserves the right to set rents at any level that is lawfully authorized, including, but not limited to, circumstances where the space is exempt or determined to be exempt from rent control, circumstances where the ordinances invalidate it in whole or in part, or circumstances where a rent increase is 'allowed' or 'permitted' under either the 'automatic' or the 'discretionary' aspects of the rent control law. [¶] Finally, please note that the Park is willing to, under appropriate circumstances, enter into a long term lease with existing homeowners, which long term lease would be assignable to a prospective purchaser. If you are interested in having such an offer made to you on an individual basis, then please contact Park Management."
Defendants do not challenge their status as a business entity or the fact that the notice at issue contains representations of fact — such as time frames within which park management will respond to notices — concerning the park's business operations and services. Nor do they challenge the fact that the notice was intended for potential buyers, as well as existing homeowners who, given the language of the form, were reasonably expected to repeat the representations to potential buyers. Rather, asserting the notice "was not designed to sell a product[,]" defendants argue that the fact they set forth the Park owners' current process for approving "in place" sales by existing residents does not transform the communication into exempted commercial speech. They argue the language demonstrates the notice "was designed to inform existing residents and those potentially seeking to buy an existing resident's RV or park model about the pending litigation and Park Owners' position on that litigation."
The main dispute is whether defendants' notice was made "for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, [defendants'] goods or services . . . ." Respondents bore the burden of making this showing. (Simpson, supra, 49 Cal.4th at p. 24.) We conclude that respondents satisfied their burden to show the notice falls within the category of commercial speech exempted from section 425.16. While defendants' notice apprised recipients of the litigation and announce defendants' position on the legal issues, the notice's language and statements concerning park requirements and practices demonstrates it plainly had an additional purpose: to assist homeowners and prospective purchasers in entering into new tenancies. The fact the notice concerned the pending litigation and warned recipients to consult with counsel does not take it outside the category of speech made for the purpose of securing the sort of commercial transactions engaged in by the park. Defendants did not present responding evidence somehow establishing that, despite its commercial character, the actual purpose of the notice was not to promote sales or leases by assisting homeowners in ending their tenancies and replacing it with a new tenancy of a prospective purchaser.
Thus, the circumstances are unlike those in Contemporary Services Corporation v. Staff Pro Inc., supra, 152 Cal.App.4th 1043, relied upon by defendants, in which the Court of Appeal declined to apply the commercial speech exemption to an e-mail sent by an event staffing business's president to various customers about its competitor's use of the courts and outcome of litigation. (Id. at p. 1054.) While the appellate court acknowledged the e-mail was directed at actual or potential customers who had some involvement in the litigation, it found the e-mail did not contain statements regarding defendants' or plaintiffs' " 'business operations, goods, or services.' " (Ibid.) Further, the court concluded the e-mail was sent to " 'set the record straight' " with regard to plaintiffs' allegations and not to obtain approval for, promote, or secure business for the defendants' event staffing services. (Ibid.) Here, unlike Contemporary Services, the defendants' notice to prospective purchasers facilitated the recipients' entry into new tenancies by giving instructions to that effect, advised them about advance notice periods under the MRL and the park's business practices, and urged them to comply with those notice requirements. Because respondents' causes of action for intentional interference of prospective economic advantage and intentional and negligent infliction of emotional distress could be based on the notice alone, and thus arise from defendants' factual representations about its business operations or services, we are compelled to conclude these causes of action are exempt from section 425.16 under the commercial speech exemption.
V. Respondents' Motion to Augment Record
Respondents have moved to augment the record with Judge Thomas Nugent's January 30, 2009 temporary restraining order in which the court found it probable plaintiffs would prevail at trial. They also ask us to augment the record with and consider a November 2, 2010 ruling on a motion for reconsideration of summary adjudication of issues in which Judge Earl Maas ruled particular plaintiffs were entitled to declaratory relief. Plaintiffs' motion is intended to present evidence to establish the requisite probability of prevailing on the merits prong, a question we do not reach.
In any event, we deny respondents' request to augment the record with, and decline to consider, the trial court's November 2, 2010 order after hearing, which was entered after the court ruled on defendants' section 425.16 motions. "Augmentation does not function to supplement the record with material not before the trial court." (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
With regard to Judge Nugent's January 30, 2009 temporary restraining order, though we grant respondents' request to augment the record with that order, neither it nor the court's preliminary injunction would have any bearing on respondents' probability of prevailing on the merits, had we reached that question. As discussed above, this court unqualifiedly reversed the preliminary injunction on appeal, vacating the order as if it had never been entered. (Weisenburg v. Cragholm (1971) 5 Cal.3d 892, 896; Fassberg Const. Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 758.) Further, decisions on a temporary restraining order/preliminary injunction are not adjudications on the merits, and thus not entitled to preclusive effect on the issues presented by the section 425.16 motions. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty U.S.A., Inc., supra, 129 Cal.App.4th at pp. 1248-1249; see Thomas v. Quintero (2005) 126 Cal.App.4th 635, 664, fn. 21 [grant of a temporary restraining order does not reflect on the merits of the underlying dispute and does not qualify the enjoining party to prevailing party status].) The determinations on the preliminary injunction are not entitled to preclusive effect in a later motion to strike under section 425.16, because the analysis of the two issues are distinct. (Huntingdon Life Sciences, at pp. 1247-1249; Lam v. Ngo (2001) 91 Cal.App.4th 832, 843-844.)
DISPOSITION
The orders are affirmed.
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O'ROURKE, J.
I CONCUR:
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BENKE, Acting P. J.
I CONCUR IN THE RESULT:
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HALLER, J.