Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. SC088256. Jacqueline A. Connor, Judge.
Garfield & Tepper and Scott J. Tepper for Defendants and Appellants.
Randolph M. Hammock for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Appellants -- lessor and its parent company -- appeal from the denial of their anti-SLAPP motion, brought after respondent/lessee filed this action for breach of the parties’ real property lease. The motion was brought pursuant to Code of Civil Procedure section 425.16, which provides in relevant part: “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 or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) The trial court found that the action did not arise from protected speech or the right of petition. We agree and affirm the order.
SLAPP is an acronym for strategic lawsuit against public participation. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
All statutory references are to the Code of Civil Procedure.
BACKGROUND
1. The First Amended Complaint
The first amended complaint (FAC) alleges that respondent, Renaissance Academy Charter High School (respondent or Renaissance), entered into a written lease in 2005 with appellant Westside Medical Park LLC (Westside), for 15,000 square feet of office space on South Bundy Drive, in order to conduct its school operations. As an express condition of the lease agreement, all improvements made by Renaissance were to be “‘subject to Landlord’s prior reasonable approval.’” According to the FAC, on August 4, 2005, appellants expressly approved respondent’s tenant improvement plans, and gave written authorization to Renaissance to obtain permits. Thereafter, respondent applied for a conditional use permit and construction permits and began construction of classrooms.
Westside owns the subject property, while appellant Stonebridge Holdings, Inc., is a real estate development company and managing member of Westside.
The FAC alleges that after respondent expended several hundred thousand dollars on tenant improvements, Westside breached or repudiated the lease agreement by revoking the consent previously granted. In a series of communications directed to the Los Angeles Department of Building and Safety (Department), appellants reported that there were “‘hazardous substances’” on the premises, that appellants had not authorized a conditional use permit, that the lease permitted use of the premises only for “‘office’ purposes, and not for use as a school,” and that appellants intended to unilaterally rescind the lease and return all deposits. The FAC alleges that appellants forwarded the communications to various other Los Angeles city officials, the Los Angeles Planning Department and the Los Angeles Unified School District.
The FAC alleges that appellants materially breached “their express obligation and duty under the subject lease to give all reasonable approval to [Renaissance] for necessary tenant improvements.” As a consequence, respondent has been unable to occupy the premises, and has suffered damages, consisting of the loss of the improvements made, the loss of enrollment, the cost of temporary facilities, lost parking fees and incidental costs. The FAC sets forth respondent’s claims in six counts: breach of contract; breach of the covenant of good faith and fair dealing; fraud; specific performance; injunctive relief; and constructive or wrongful eviction.
Specific performance is a remedy for breach of contract. (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 49.) It is not a separate cause of action. (See Miller v. Dyer (1942) 20 Cal.2d 526, 531.) Similarly, injunctive relief is not a separate cause of action, but merely a requested remedy. (Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 162.) An anti-SLAPP motion does not lie to strike remedies. (Ibid.)
2. The Anti-SLAPP Motion
Appellants responded to the FAC with an anti-SLAPP motion to strike all but the third cause of action (fraud). The motion was based upon appellants’ contention that all acts upon which the five targeted causes of action are based arose from appellants’ constitutional rights of petition and free speech. Appellants supported the motion with the declarations of David L. Lara, Steven W. Weston, Rick Buckley and Michael R. Lombardi.
David Lara, the Department’s Chief of Case Management, Neighborhoods and Government Services Division, stated he notified respondent in August 2005 that the space for a school would require a conditional use permit. Respondent applied for a conditional use permit in December 2005, but as of the date of Lara’s declaration in April 2006, no certificate of occupancy as a school had been issued.
Steven Weston, Westside’s land use attorney, stated in his declaration that upon finding volatile organic compounds in the property’s soil and groundwater in April 2005, Westside obtained approval of a “Remedial Action Plan” from the California Water Quality Control Board, but the approval did not extend to the use of the property as a school. Weston stated that due to Westside’s potential liability for any violations of environmental laws, he advised Westside not to sign respondent’s conditional use permit application; in September 2005, he notified the Department of the status of the environmental remediation on the property, and of Westside’s unwillingness to consent to the permits.
Rick Buckley, Westside’s real estate broker, stated in his declaration that he negotiated and drafted the lease in May 2005, after having received two letters of intent from respondent to lease the property for purposes of operating a charter high school. Buckley stated he had no prior experience in leasing space to a public charter high school, and he was unaware of the need for disclosure of environmental matters.
In his declaration, Michael Lombardi stated he was the president of Stonebridge, a real estate development company and managing member of Westside, the owner of the subject real property. Lombardi claimed that although he signed the authorization for construction permits in August 2005, he did not intend to authorize respondent’s application for permits to allow classrooms. Lombardi later refused to sign respondent’s application for a conditional use permit, and instructed Weston to communicate the “various issues” to the Department, including Westside’s intent to rescind the lease. In November 2005, Lombardi communicated his offer to rescind the lease to respondent, when it became clear to him that respondent would not be able to obtain permits and a certificate of occupancy. Lombardi stated that at that time, he offered to return all rent and deposits, but respondent refused his offer. Respondent surrendered the premises on February 28, 2006.
In opposition to the anti-SLAPP motion, respondent submitted the declarations of Paul McGlothlin and Paul Antieri. McGlothlin, the principal of Renaissance, stated that he met with Westside’s agents when the lease was negotiated, and made it clear that the premises were to be used as a school and that tenant improvements would be required to create classrooms for 350 students. McGlothlin stated that at no time prior to the execution of the lease was respondent advised of “‘environmental’ issues or concerns” at the site; respondent did not discover the issues until after September 23, 2005, and would not have entered into the lease had it been so advised.
McGlothlin claimed that respondent began the improvements in the summer of 2005 with permits only for office use, upon the advice of the “assigned liaison person” from the Department, who understood respondent intended to use the space for a school, but advised proceeding as it did because the site was not yet zoned for school occupancy. McGlothlin stated that respondent proceeded with its plans using Westside’s August 4, 2005 written authorization to apply for construction permits, without initially applying for a conditional use permit, because respondent’s land use attorneys had advised that it could exempt itself from the zoning laws by resolution.
McGlothlin stated that because the school was forced to use two successive temporary facilities, enrollment declined. During that time, Westside continued to demand rent and parking fees. McGlothlin stated that when he personally tendered the demanded amount to Lombardi, Lombardi said he wanted respondent to vacate the premises, so he could develop the property more profitably; he also said he was rich and influential, and that he would “‘destroy’” the school financially and sue McGlothlin personally if respondent remained in possession. McGlothlin stated that in December 2005, Westside sent respondent an invoice for property taxes, and 30 days later, when respondent did not pay them, claiming exemption as a public charter school, Westside served a three-day notice to pay or quit. Respondent’s charter was revoked by the Los Angeles Unified School District on January 10, 2006, due to its failure to procure an appropriate school site, and respondent vacated the premises February 28, 2006.
In his declaration, Paul Antieri, a member of respondent’s board of directors and a mechanical engineer, stated he was involved in the construction of improvements and the permit process. Antieri summarized the steps taken to obtain construction permits and a conditional use permit, including a resolution of the Department’s concerns regarding seismic upgrades, air and soil quality, building safety and health and traffic hazards. Antieri claimed that all Department concerns had been resolved by December 2005 and plans had been filed and accepted; nevertheless, the Department would not issue permits because the landlord had rescinded its consent to the conditional use permit. Antieri stated he spoke to Lombardi, who told him that occupancy of the building as a school would interfere with appellants’ soil testing and remedial work, and that he thought the charter would soon be revoked, rendering the issue moot.
3. Order Denying Motion, and Appeal
The trial court denied the anti-SLAPP motion, finding that appellants had failed to meet their burden to show the challenged causes of action arose from protected speech or activity. The court found that the alleged actionable conduct had not been undertaken in furtherance of the right of petition or free speech, but merely “demonstrated the purported failure to provide reasonable consent for the required permits and certificates in order for [Renaissance] to operate the premises as a public school.” Thus, the court concluded, the cause of action did not arise from the communications to the Department, but from the alleged breach of contract. The order denying the motion was entered July 11, 2006, and appellants timely filed their notice of appeal.
DISCUSSION
Appellants contend the trial court erred in finding that appellants had failed to meet their burden to show that the conduct alleged in the FAC arose from their right to petition the government. We review the trial court’s ruling under a de novo standard of review. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)
“As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law. . . .” (§ 425.16, subd. (e).) It is the moving party’s burden to make “a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.]” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier); § 425.16, subd. (b)(1).)
Appellants claim they established the action arose from protected speech or petition activity by showing that respondent filed the action for breach of contract “expressly because [appellants’] counsel communicated with the [Department] on a matter then being considered by [the Department].” We disagree. “‘[A]rising from’” cannot be construed simply to mean “‘in response to.’” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 77 (Cotati).) “[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been ‘triggered’ by protected activity does not entail that it is one arising from such. [Citation.] 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. [Citations.]” (Navellier, supra, 29 Cal.4th at p. 89, citing Cotati, supra, 29 Cal.4th at pp. 76-78.)
“The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability -- and whether that activity constitutes protected speech or petitioning.” (Navellier, supra, 29 Cal.4th at p. 92, italics omitted.) “Thus, it is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies. [Citation.]” (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414 (Scott); see also Cotati, supra, 29 Cal.4th at p. 79.)
The thrust or gravamen of respondent’s cause of action is a breach of contract, specifically, appellants’ alleged breach of “their express obligation and duty under the subject lease to give all reasonable approval to [Renaissance] for necessary tenant improvements.” The contract was not, itself, protected activity. (Cf. Navellier, supra, 29 Cal.4th at p. 90 [release of claims made in pending litigation was itself protected activity].) It was an agreement as to the manner in which the parties’ private transactions would be carried out. (Cf. Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 794 (Wang) [private contract required a new street in development for which permits were required].)
The “prior approval” provision may be construed as a promise to cooperate in respondent’s application for permits, as the FAC alleged that appellants did initially cooperate by approving respondent’s plans for improvements and authorizing it to obtain permits. Additionally, there is an implied covenant of good faith and fair dealing in every contract, including real property leases, that “‘“imposes upon each party the obligation to do everything that the contract presupposes they will do to accomplish its purpose.” [Citation.]’ [Citation.]” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 589.)
While the FAC expressly references appellants’ communications with the Department in alleging the breach, we are not confined to the allegations of the complaint. (Navellier, supra, 29 Cal.4th at p. 89.) “In deciding whether the initial ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ [Citation.]” (Ibid., quoting § 425.16, subd. (b).) The action is not a SLAPP unless it appears from all the facts that but for protected activity, the plaintiff’s claims would have no basis. (Id. at p. 90.) Here, Stonebridge’s president, Lombardi, admitted he signed the initial permit consent with no intention of agreeing to the construction of classrooms, and he admittedly refused to sign a consent to enable respondent to obtain a conditional use permit. McGlothlin stated that Lombardi demanded that Renaissance vacate the premises, and threatened to ruin the school if it did not do so. Not only did appellants notify the city that it rescinded the consent, but Lombardi informed Antieri that appellants would not give consent, and would simply wait until the school’s charter was revoked. When Renaissance refused appellants’ offer of rescission, appellants demanded property taxes and served a three-day notice to pay or quit. Thus, the gravamen or thrust of the cause of action is appellants’ refusal to perform the express and implied terms of the contract. (See id. at pp. 90, 92; § 425.16, subd. (b)(2).) Upon review of these facts, we cannot conclude that but for protected activity, respondent’s claims would have no basis. (Navellier, at p. 90.)
The FAC alleges that the acts constituting the breach “include[d], but [were] not limited to” the communications to the Department.
Although communicating with the Department was one of the ways in which appellants allegedly carried out the breach, it was not the conduct for which respondent seeks damages. (Cf. Wang, supra, 153 Cal.App.4th at p. 809 [“The liability theory is the loss . . . allegedly caused by breach of contract or fraud . . ., rather than damages caused by any protected activity . . . .”].) The communications are merely evidence of the alleged breach, and allegedly wrongful acts should not be confused with the evidence needed to prove the misconduct. (Scott, supra, 115 Cal.App.4th at pp. 415-417; Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308 (Santa Monica Rent Control); Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1399 (Gallimore).)
Our Supreme Court’s holding in Cotati is instructive of the difference between a breach of duty and the evidence of the breach. There, after the owners of mobile home parks filed a declaratory relief action in federal court, challenging the legality of a city rent stabilization ordinance, the city filed an action against the owners in state court, seeking declaratory relief that the ordinance was valid. (Cotati, supra, 29 Cal.4th at pp. 72-73.) The trial court, finding the city’s suit involved the “‘exact contention’” made by the owners in their original suit, determined that the second suit “‘arose out of [owners’] right of petition under the U.S. Constitution as defined in [section 425.16]’” and granted the owners’ anti-SLAPP motion. (Id. at p. 73.) The Supreme Court reversed. Acknowledging that the city’s suit “may have been triggered” by the owners’ original suit, the court distinguished between the actual controversy -- a dispute over the validity of the city ordinance -- and evidence of that controversy. (Id. at p. 78.) As the court noted, the owners’ original action “informed [the] City of the existence of an actual controversy justifying declaratory relief.” (Id. at p. 79.) Similarly, here appellants manifested their withdrawal of approval -- the evidence of their alleged breach of contract -- through their communications with the Department. It was not those communications per se that respondent found objectionable; it was appellants’ determination to rescind their consent to respondent’s obtaining the permits necessary to make its building improvements.
Appellants correctly note that in Cotati, the city’s complaint did not expressly refer to the prior action brought by the owners, whereas here, the FAC refers to the communications between appellant and the Department. However, the court in Cotati made clear that although the federal lawsuit was protected activity, the determination whether the city’s suit was a SLAPP did not hinge upon that fact, because the action did not “‘arise[] out of’” such protected activity, but out of the parties’ disagreement over the legality of the ordinance. (Cotati, supra, 29 Cal.4th at pp. 76-77.) Here, the fact that the FAC alleges communications with the Department does not alter the fact that the controversy underlying the instant lawsuit is the alleged breach of contract -- specifically, appellants’ failure to provide reasonable approval of respondent’s attempts to make improvements, by unreasonably withholding and rescinding such approval, and their unilateral repudiation of the lease. The communications are evidence of that conduct.
The difference between actionable conduct and the evidence proving it was again illustrated in Santa Monica Rent Control, supra, 109 Cal.App.4th 1308. There, plaintiff Rent Control Board alleged that the landlord defendants filed deceptive documents with the board after having created false tenancies in order to show compliance with the rent control ordinance. (See id. at pp. 1317-1318.) The defendants argued that the board’s cause of action arose from defendants’ having presented such documents to a public administrative agency. (Id. at p. 1317.) The court held that the cause of action was one to compel compliance with the rent control ordinance, not to remedy the defendants’ having filed deceptive documents with the board. (Id. at p. 1318.) Thus, the breach of duty was the failure to comply with the ordinance, not the defendants’ written communications to the administrative agency. (Ibid.) Similarly, the breach of duty in this case was appellants’ alleged failure to comply with the express and implied terms of the lease, not their communications to the Department. While those communications evidenced the breach of contract, the cause of action arises from the breach itself, not the manner in which it was communicated.
Appellants alternatively contend this action is subject to the anti-SLAPP statute as a “‘mixed’ claim[].” A claim is mixed where some of the claimed loss resulted from the protected activity. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 673-674.) Appellants invoke the approach of some appellate courts where a pleading alleges both protected and unprotected activity; they have held that “‘the cause of action will be subject to section 425.16 unless the protected conduct is “merely incidental” to the unprotected conduct.’ [Citations.]” (Id. at p. 672.) However, the question is not merely whether the complaint alleges protected activity, but whether the cause of action arose from the alleged protected activity, such that the gravamen or thrust of the cause of action is to impose liability for the protected activity. (Scott, supra, 115 Cal.App.4th at pp. 414-415.) Thus, claiming damages for a breach of contract allegedly accomplished through the building permit process does not necessarily include a challenge to the defendant’s rights of free speech or petition. (Wang, supra, 153 Cal.App.4th at pp. 794, 804.)
Wang, illustrates the point. There, the complaint alleged a breach of contract based primarily on conduct carried out in connection with obtaining permits for a real estate development. (Wang, supra, 153 Cal.App.4th at p. 795.) Despite the fact that each of the causes of action was based directly upon the permitting activity, the court of appeal rejected defendants’ anti-SLAPP motion, finding the suit was “not based essentially on protected conduct,” but rather on the wrongful acts of the defendants during the permitting process. (Id. at p. 807.) Thus, the court concluded, “a fair reading of the allegations about the acts underlying plaintiffs’ causes of action leads to a conclusion that plaintiffs are relying on acts that [the defendant] carried out in furtherance of its economic interests in implementing the contractual agreement . . . .” (Id. at p. 809, citing Cotati, supra, 29 Cal.4th at p. 78.) The court observed that even if the “main focus” of the allegations remained the defendant’s conduct in obtaining governmental approvals, “those are still predominantly private business-oriented activities that gave rise to the asserted contractual or tort liability. The liability theory is the loss of property value, allegedly caused by breach of contract or fraud . . ., rather than damages caused by any protected activity involving speech or petitioning the government.” (Wang, at p. 809.)
Here, as the court did in Wang, we conclude that the communications to the Department are evidence, not the theory of liability. Thus, allegations regarding the communications are evidentiary facts, unnecessary to the statement of the cause of action. Appellants concede that their motion would have no merit had respondent alleged only that “Westside failed to support its attempts to seek building and use permits, and re-zoning, . . . [or] . . . to provide or execute certain documents, as it was allegedly contractually obligated to do.” In fact, such ultimate facts may be deduced from the evidentiary allegations of the FAC and the declarations. The fact that the evidence of such ultimate facts may consist of protected speech does not make this action a SLAPP. (See Wang, supra, 153 Cal.App.4th at pp. 804-805; Scott, supra, 115 Cal.App.4th at p. 417; Santa Monica Rent Control, supra, 109 Cal.App.4th at p. 1319, fn. 14; Gallimore, supra, 102 Cal.App.4th at p. 1399.)
A properly pleaded complaint should allege only ultimate facts, not evidentiary facts. (See Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390; 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 344, pp. 443-444.) Ultimate facts are factual conclusions logically deduced from evidentiary facts. (Krug v. Meehan (1952) 109 Cal.App.2d 274, 276.) It is good practice for plaintiffs to draft complaints carefully to avoid inviting unmeritorious anti-SLAPP motions. (Scott, supra, 115 Cal.App.4th at p. 410 [the complaint’s “allegations . . . invited the . . . section 425.16 motion like the wolf invited Little Red Riding Hood into grandma’s house”].)
The recent decision in Midland Pacific Bldg. Corp. v. King (Nov. 28, 2007, B192017) ___ Cal.App.4th ___, does not compel a contrary result. There, property owners who had contracted to sell their land to the plaintiff agreed to secure approvals from the city for the construction of a development in conformance with an agreed-upon tract map. At the city planning commission hearing convened to consider the tract map, the property owners appeared and proposed a new and different map. At a subsequent hearing, the owners sought approval of another map inconsistent with the one agreed to in their contract with the plaintiff. The plaintiff sued for breach of the original contract. The owners responded with a motion to dismiss under section 425.16. The trial court denied the motion.
On appeal, the court found that the property owners had satisfied the first prong of the anti-SLAPP statute, by demonstrating that the actions alleged to constitute the breach were petitioning activity protected under the anti-SLAPP statute. In so holding, the court emphasized that the owners’ obligation to secure governmental approvals was “the essence of the contract.” Midland, supra, ___ Cal.App.4th at p. ___ [at p. 9]. It was, the court noted “what [the plaintiff] paid [the defendants] to do.” (Ibid.) Here, in contrast, the contract was a lease, entered into by the parties in contemplation of Renaissance’s operating a school on the leased premises. Far from being “the essence” of the contract, obtaining permits was merely incidental to the fulfillment of the contract. Moreover, the lease expressly provided that it was the responsibility of Renaissance -- not Westside -- to obtain any needed permits. Thus, unlike Midland, this is not a case in which “obtaining governmental approval was . . . what [the plaintiff] paid [the defendants] to do. (Ibid.)
The court went on to affirm the denial of the motion on the ground that plaintiff had demonstrated a probability of prevailing on the merits.
Appellants contend that respondent failed to demonstrate a reasonable probability of success on its claims at trial. The trial court did not reach this issue, as it found appellants had not met their initial burden. A plaintiff has no obligation to demonstrate a probability of success until the defendant meets the threshold burden of showing the cause of action arose from acts undertaken in furtherance of the defendant’s right of petition or free speech in connection with a public issue. (Gallimore, supra, 102 Cal.App.4th at p. 1396.) Because we find, as the trial court did, that appellants failed to meet their initial burden, we do not reach the contention that respondent failed to demonstrate a reasonable probability of success on its claims at trial.
Respondent contends this appeal is frivolous, brought solely for purposes of delay, and seeks an order for its attorney fees incurred opposing the motion and the appeal. A prevailing defendant on a special motion to strike is entitled to recover attorney fees, but a prevailing plaintiff may recover attorney fees only if the trial court finds that the motion is frivolous or intended solely to cause unnecessary delay, pursuant to section 128.5. (§ 425.16, subd. (c).) We have no authority to award respondent’s attorney fees incurred opposing the motion in the trial court, as the trial court denied attorney fees and respondent did not file a cross-appeal. (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 288.)
On appeal, a prevailing plaintiff may recover attorney fees only if the appeal is frivolous. (See Olsen v. Harbison, supra, 134 Cal.App.4th at p. 288.) An appeal is frivolous when prosecuted for an improper motive, such as harassment or delay, “or when it indisputably has no merit -- when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) On this record, we cannot determine improper motive, and although we have found the appeal to be without merit, we note that a more careful adherence to the rules of pleading might have averted an anti-SLAPP motion in the first instance. Thus, we deny the request for attorney fees on appeal.
DISPOSITION
The order of July 11, 2006, denying the anti-SLAPP motion, is affirmed. Respondent shall have costs on appeal.
We concur: EPSTEIN, P. J., SUZUKAWA, J.