Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 288336
Richman, J.
A grandmother’s death generated litigation involving three granddaughters as to which of two wills should be admitted to probate. That dispute led to another round of litigation, with both sides filing a cross-complaint accusing the other side of manipulating and abusing the grandmother. One of the granddaughters made a special motion under the anti-SLAPP statute (Code Civ. Proc., § 425.16 (section 425.16)) to strike the cross-complaint filed by the other two granddaughters. The trial court denied the motion because it concluded that, while the cross-complaint did allege some protected activity, the gravamen of the cross-complaint was a private dispute between the parties, and therefore outside the scope of section 425.16.
The losing granddaughter has appealed, contending that the trial court misconstrued the gravamen of her cross-complaint. Upon our de novo review, we agree with the trial court that the gravamen of the cross-complaint puts it outside the protection of the anti-SLAPP statute. We therefore affirm.
BACKGROUND
Renna Holmes died on Christmas 2005, less than a month after her 84th birthday. She owned and operated the Holland Board & Care Home (HBCH), described in one the pleadings as “a licensed elder care facility” located at 3537 Jennings Street in San Francisco. The same document describes Ms. Holmes’s granddaughter Toshia Webster as the “administrator” of the facility.
On February 1, 2006, granddaughter Rhonda Colvin filed a petition asking that a will made by Ms. Holmes in 1985 be admitted to probate, and that in accordance with the terms of that will she be appointed executor of the estate. On March 3, 2006, granddaughter Toshia Webster filed a petition for admission of a will made by Ms. Holmes in 2004 be admitted to probate, and that in accordance with the terms of that will she be appointed executor of the estate.
The only real asset of the estate was the Jennings Street property, which was valued in both petitions at approximately $430,000. According to the 1985 will, it would pass to all granddaughters “in equal shares, share and share alike.” In the 2004 will, the property was left “to my granddaughter, Toshia Webster.”
On July 21, 2006, after Toshia Webster filed a will contest (see Prob. Code, §§ 8004, 8250), Colvin filed a cross-complaint against Toshia Webster and others, with the focus on Webster. Colvin alleged that “In her role as granddaughter and administrator of the board and care [facility], [Webster] became the exclusive caregiver for Decedent who was unable to operate the board and care, and in this manner she controlled access to Decedent and the board and care checking account at the time the [2004] Will was executed. Throughout . . . [Webster’s] relationship as administrator, she transferred Decedent’s funds to herself and her sister Tina Webster.”
The other named cross-defendants were: (1) Simon Smith, the husband of Toshia Webster; (2) Dionne Choyce, the attorney who drew up the 2004 will; (3) Calvin Johnson, a witness to the 2004 will; and (4) Cedric Akbar, the other witness to the 2004 will. Johnson and Akbar are described in the cross-complaint as “close associates of cross-defendants [Webster] and Smith.”
Although Tina Webster was not named as a cross-defendant, she was apparently served as a Doe defendant.
Colvin further alleged that, following her husband’s death in 2002, Ms. Holmes suffered from congestive heart failure and a loss of her mental faculties that eventually became “dementia.” Taking advantage of this situation, and knowing that the continued operation of HBCH was her grandmother’s dearest wish, Webster threatened to quit as HBCH administrator unless Ms. Holmes made a will leaving the Jennings Street property to her. The threat had its intended effect and overcame Ms. Holmes’s resistance, and Webster selected the attorney who drafted the 2004 will. Finally Colvin alleged that Webster’s embezzling from Ms. Holmes’s checking account continued until she died.
Based on these allegations, Colvin stated causes of action for “conspiracy to commit financial elder abuse,” a constructive trust, and an accounting. Colvin also prayed for declaratory relief that, in light of her financial elder abuse, Webster be deemed under Probate Code section 259 to have predeceased her grandmother.
In October 2006, Colvin filed a new pleading titled “Complaint: 1. Financial Elder Abuse; 2. Fraud & Deceit Based on Concealment; 3. Establishment and Imposition of Constructive Trust; 4. Determination that Defendant Toshia Webster and Tina Webster Predeceased Decedent; 5. Accounting.” The factual allegations were virtually identical to those in Colvin’s earlier pleading. The only salient differences were that: (1) both Toshia Webster and Tina Webster (hereafter collectively “the Websters”) were alleged to have participated in the “conspiracy to commit financial elder abuse,” from both of whom an accounting was demanded and a constructive trust requested; (2) both Websters were now alleged to be disqualified from inheriting because of their financial elder abuse; and (3) all defendants were now alleged to have been involved in a “conspiracy to commit fraud and deceit based on concealment.”
As to the last point, the fraud allegedly consisted of defendants concealing from Ms. Holmes that the 2004 will would not fulfill her testamentary wishes in several particulars: “Defendants knew on August 4, 2004, Decedent was not of sound mind and lacked testamentary or donative capacity, and because of Decedent’s mental state, Defendants agreed that they would unduly influence Decedent to execute the August 4, 2004 Will, disposing of her entire estate contrary to her wishes as they all knew.”
The following events occurred in 2007:
In June, the San Francisco Public Administrator was appointed to administer Ms. Holmes’s estate.
On August 30, the Websters filed their own “Cross-Complaint for Damages: 1. Financial Elder Abuse; 2. Fraud (Concealment); 3. Conversion; 4. Negligence; 5. Accounting; 6. Determination that Cross-Defendant Predeceased Cross-Complainants; 7. Imposition of a Constructive Trust” against Colvin. As is typical, the Websters began their cross-complaint with a number of “General Factual Allegations” that were the basis for the ensuing causes of action. Because certain of those allegations figured in the trial court’s ruling that is challenged here, we deem it germane to set them out more or less verbatim:
“11. In an effort to thwart the legitimate testamentary intent of decedent, without a lawful or factual basis for so doing, cross-defendant filed a petition to probate the 1985 Will and a complaint for damages against cross-complainants. The allegations set forth in cross-defendant’s petition for probate of the 1985 Will and complaint are baseless and have no merit because cross-defendant knew that decedent had executed the 2004 Will which revoked the 1985 Will.
“12. Moreover, cross-complainants allege that it was cross-defendant who secreted and stole decedent’s money from decedent’s checking accounts, misappropriated assets rightfully owned by decedent and/or the [HBCH], used the credit cards of decedent and/or the HCBF for cross-defendant’s own use and otherwise depleted the assets of the estate of decedent. Cross-defendant engaged in these unlawful acts during a time when cross-defendant was acting as administrator of the HBCF. When decedent discovered the unlawful acts of cross-defendant, as set forth in this paragraph of this cross-complaint, numbered paragraph 12, and as otherwise set forth in this cross-complaint, decedent terminated cross-defendant as administrator of the HBCF.
“13. Cross-defendant has negligently, wrongfully and/or intentionally engaged in the acts set forth . . . of this cross-complaint, with indifference to the rights of cross-complainants and decedent, with reckless disregard as to the rights of cross-complainants and decedent and with an ulterior motive to defeat a valid will, the 2004 Will.
“14. As a direct and proximate result of cross-defendant’s intentional and negligent acts, as alleged and as set forth in this cross-complaint, cross-complainants have suffered damages in an amount according to proof.”
On September 6, Colvin filed a special motion under section 425.16 to strike the Websters’ cross-complaint. Based on paragraph 11 of the cross-complaint, Colvin asserted that it was her “filing a petition to probate the 1985 Will and a complaint for damages against cross-complainants that forms the basis for the instant cross-complaint,” and that those filings were activities protected by section 425.16.
The Websters’ response took two forms. The first was opposition to Colvin’s motion on the grounds that their cross-complaint did not involve protected speech (Code. Civ. Proc., § 425.16, subd. (b)(1)), and they were likely to prevail on the merits. The second prong of the Websters’ response to Colvin’s motion to strike was a motion for leave “to file an amended cross-complaint . . . or, in the alternative, allowing the cross-complaint already filed to stand.”
The motions were heard in the law and motion department, before the Honorable Patrick J. Mahoney, who issued a tentative decision—which is not in the record on appeal—denying Colvin’s special motion to strike and granting the Websters’ motion to let their cross-complaint “stand.” Colvin requested a hearing to argue the tentative ruling. At the hearing, counsel for Colvin opened argument by stating “The big issue is what the tentative phrases as a misappropriation claim as being the gravamen of the cross-complaint, which is the basis for denial of the 425.16 matter.”
Judge Mahoney agreed with this assessment, and then explained how it was reached: “To me there were two operative paragraphs in the cross-complaint, paragraphs 11 and 12. There’s no question that paragraph 11 focuses on protected activity within the course and scope of litigation . . . . [¶] So then . . . I looked at paragraph [12], which is the other operative paragraph . . . . [¶] It seemed to me if I looked at the complaint as a whole, I could literally drop out paragraph 11 and it wouldn’t change the substance of what the cross-complaint is seeking. In other words, it seemed to me that the basic charges relate to the operation of this entity [i.e., HBCH]. [¶] . . . [¶] . . . That was really the charging conduct. I absolutely grant you that paragraph 11 charges conduct that would be covered by anti-SLAPP,” but “paragraph 12 seems to me to relate to conduct that occurred before the person whose estate is at issue passed away.”
After Judge Mahoney heard from counsel for Colvin, counsel for Tina Webster agreed with the court’s assessment that “Paragraph 12 is the essence of what we’re doing in this case, why the cross-complaint was filed,” and it “relates to events and conduct that occurred prior” to Ms. Holmes’s death. Counsel’s assessment of the dispute was that “It’s not a matter of public concern and it’s not a matter that really anyone outside of these litigants and their attorneys care one [whit] about.”
Despite the earnest arguments of Colvin’s counsel, Judge Mahoney was unpersuaded, and announced his final ruling as follows: “I’m going to adopt the tentative ruling. I’m going to grant the leave to file the cross-complaint because it is a compulsory counter-claim. And the policy of allowing amendments is one that is liberally construed. [¶] I am going to deny the anti-SLAPP motion. . . . As I said, paragraph 11 does allege protected activity, . . . but that is not . . . the be all and end all of the discussion. [¶] And the Court needs to look at the totality of the circumstances and allegations and based on that analysis . . . . [I]t is my conclusion that the essence of this dispute centers around the operation and management of the health care facility. [¶] So on prong one, I’m finding that the moving party has not sustained the burden of proof.”
On December 28, Judge Mahoney filed separate orders denying Colvin’s special motion and order allowing the Websters’ cross-complaint to remain on file. Colvin filed a timely notice of appeal from the orders.
Although neither party in their brief completely addresses the subject of whether the orders are appealable, because the subject is jurisdictional, we feel obliged to consider it on our own initiative. (Jennings v. Marabelle (1994) 8 Cal.4th 121, 128.) The order denying Colvin’s motion to strike is appealable, because the anti-SLAPP statute expressly makes it so. (§ 425.16, subd. (i).) The other order is more problematic, because there is no direct precedent. By its plain terms, the order merely allows the Websters’ cross-complaint to remain filed. Its practical effect appears to be nil. Obvious analogies are orders overruling a demurrer, denying a motion to strike a pleading, or granting leave to file a cross-complaint, which are not appealable. (See Laird v. Steinmann (1950) 97 Cal.App.2d 781, 782-783; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §§ 154-156, pp. 230-232.)
DISCUSSION
General Principles of the anti-SLAPP statute
“A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) “Because these meritless lawsuits seek to deplete ‘the defendant’s energy’ and drain ‘his or her resources’ [citation], the Legislature sought ‘ “to prevent SLAPPs by ending them early and without great cost to the SLAPP target” ’ [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of a lawsuit using a summary judgment-like procedure at an early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192; accord, Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278 (Soukup).)
The anti-SLAPP statute explains the category of claims it is intended to reach and the means of its expedited procedure. “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).) “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 . . . .” (Id., subd. (e).) To effectuate the Legislature’s goals, the statute is to be given a broad construction. (Id., subd. (a).)
In ruling on an anti-SLAPP motion to strike, the trial court undertakes a two-step process. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant’s] right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
With respect to the first step of this process, the court looks first at the essence of the defendant’s words or conduct for which the plaintiff is trying to attach liability. “[T]he statutory phrase ‘cause of action . . . arising from’ means simply that 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. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of Cotati); accord, Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) The labels the plaintiff assigns to causes of action do not control the analysis: “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, at p. 92; Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 187 (Martinez) [“a plaintiff cannot avoid operation of the anti-SLAPP statute . . . through artifices of pleading”].) “[I]t is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.” (Id. at p. 188.)
In deciding the second part of the inquiry, “though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; accord, Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, fn. 10.) And while the court must “ ‘accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’ [Citation.]” (Soukup, supra, 39 Cal.4th 260, 269, fn. 3), the defendant’s evidence prevails as a matter of law if it establishes a defense or negates a necessary element of the plaintiff’s claim. (Carver v. Bonds (2005) 135 Cal.App.4th 328, 344; 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.) The court must consider the plaintiff’s complaint (Zamos v. Stroud (2004) 32 Cal.4th 958, 965), but the plaintiff cannot rely on the complaint’s allegations to satisfy the burden of producing admissible evidence in opposition to a defendant’s special motion to strike the complaint. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1245 (Huntingdon); Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010.)
An appellate court independently reviews the trial court’s order granting or denying special motion to strike. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325; Soukup, supra, 39 Cal.4th 260, 269, fn. 3.) This court has explained the scope and nature of such review: it “includes whether the anti-SLAPP statute applies to the challenged claim. [Citation.] Furthermore, we apply our independent judgment to determine whether [plaintiff’s] causes of action arose from acts by [defendant] in furtherance of [defendant’s] right of petition or free speech in connection with a public issue. [Citation.] Assuming these two conditions are satisfied, we must then independently determine, from our review of the record as a whole, whether [plaintiff] has established a reasonable probability that he would prevail on his claims. [Citation.]” (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645 (Thomas); accord, Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 609-610.)
We proceed to that review.
The Websters do not challenge Judge Mahoney’s determination that their cross-complaint alleged some activity that is protected by section 425.16. The point of dispute here is only his other determination that the allegations in the Websters’ cross-complaint were in effect incidental to a cause of action based essentially on nonprotected activity. In the anti-SLAPP context, this is what has come to be called a “mixed” cause of action. (See Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287; Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1281, fn. 3; Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 335-336; Peregrine Funding, Inc. v. Sheppard, Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672; Huntingdon, supra, 129 Cal.App.4th 1228, 1245; Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 104.)
This court has accepted that a “mixed” cause of action is not always subject to the anti-SLAPP statute. (Huntingdon, supra, 129 Cal.App.4th 1228, 1245; Thomas, supra, 126 Cal.App.4th 635, 653.) Partly this is a matter of not conflating proximity and causation: “[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity. The anti-SLAPP statute cannot be read to mean that ‘any claim asserted in an action which arguably was filed in retaliation for the exercise of speech falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.’ ” (City of Cotati, supra, 29 Cal.4th 69, 76-77, quoting ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th 993, 1002.) “Moreover, that a cause of action arguably may have been ‘triggered’ by protected activity does not entail it is one arising from such.” (Navellier, supra, 29 Cal.4th 82, 89.) Any other approach would make all cross-actions or cross-complaints subject to section 425.16, a result our Supreme Court called “absurd” and not intended by the Legislature. (City of Cotati, supra, at p. 77.)
On the one hand, courts have recognized that “artifices of pleading” must not be permitted to subvert the statute: “ ‘a plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one “cause of action.” ’ [Citation.] Conversely, a defendant . . . cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech or petitioning activity by the defendant.” (Martinez, supra, 113 Cal.App.4th 181, 187-188.) Thus, we and other courts accept that “ ‘it is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.’ ” (Thomas, supra, 126 Cal.App.4th 635, 653, quoting Martinez, supra, at p. 188.)
Our independent review has led us to conclude that we agree with Judge Mahoney’s reasoning. Paragraph 11 does make reference to Colvin’s petition to probate the 1985 will and to the pleading for damages she filed against Webster (see fn. 2, ante), actions that qualify as protected activity. (E.g., Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) But that protected activity is not the gravamen or principal thrust of the claims in the Websters’ cross-complaint, as the relative importance of paragraphs 11 and 12 to Colvin’s pleading make clear.
Paragraph 11 is in the scheme of the cross-complaint not much more than another bit of background, one that could be excised without imperiling the structural integrity of the pleading. By contrast, paragraph 12 is absolutely vital, the beating heart of the cross-complaint. It is there that are found the allegations that Colvin in effect looted what became the estate of Ms. Holmes following her death. But the alleged looting occurred while Colvin was administering HCBH, and while Ms. Holmes was still alive. And the looting ended when Ms. Holmes “terminated” Colvin “as administrator” of the HCBH. In other words, the actionable conduct began and ended during Ms. Holmes lifetime. It is therefore logically and chronologically distinct of the ensuing litigation. This conclusion is only reinforced by examining how paragraph 12 fits in with the causes of action alleged by the Websters.
Their first cause of action is for “Financial Elder Abuse.” The Websters allege that Colvin “misappropriated property of decedent, to the detriment of cross-complainants and in an attempt to thwart the testamentary intent of decedent, and to harm decedent and cross-complainants.” The “harm” to “decedent” was the “misappropriation” accomplished by Colvin during the period she administered the HCBH while Ms. Holmes was still alive. The same “misappropriation” would “harm” the Websters, or at least Toshia Webster, by dissipating assets that would otherwise pass according to the 2004 will. This harm, however, would not need the contest of that will, or the pleading Colvin subsequently filed once the will contest had begun, to be actionable. In short, the “Financial Elder Abuse” occurred and could have been a cause of action even before Ms. Holmes died.
The same is true for the “Fraud (Concealment)” cause of action. The relevant allegations were that Colvin “concealed from decedent and from cross-complainants that [she] was illegally misappropriating decedent’s property” in violation of Colvin’s “legal duty not to conceal” that she “was misappropriating decedent’s property.” Breach of this duty was “to the detriment of decedent and cross-complainants.” Again, the operative period was while Colvin was administering the HBCH, while Ms. Holmes was alive. The harm was done before the litigation started.
The same is also true for the “Conversion” and “Negligence” causes of action in the cross-complaint. These are simply different labels for the same allegations. Here the Websters merely change the verbs on the same allegations in the “Fraud (Concealment)” cause of action. Instead of “misappropriating” decedent’s property, Colvin is now alleged to have “converted” that property to her “own personal use and gain,” but still “conceal[ing] . . . that [she] was converting decedent’s property for [her] own personal use and gain.” This too was a breach of Colvin’s “legal duty in this regard, all to the detriment of decedent and cross-complainants.” Next, Colvin is alleged to have breached “a legal duty not to perform” her administrator’s “responsibilities and obligations . . . in a negligent manner.” This legal duty was “owed cross-complainants . . . by virtue of cross-defendant’s relationship to cross-complainants and by virtue of cross-defendant’s relationship to decedent.” The last allegation is significant because it sets the time of Colvin’s alleged negligence to the period while Colvin was administering the HBCH—and while Ms. Holmes was still alive.
The “Accounting” and “Imposition of a Constructive Trust” causes of action are governed by the same reasoning. These merely designate remedies for restitution of the same funds Colvin is alleged to have defrauded, converted, and negligently obtained while she was administrator of the HBCH before she was “terminated” from that position by Ms. Holmes. Neither of these remedies is in any way connected to the litigation attending Ms. Holmes estate. Finally, the Websters’ cause of action for “Determination that Cross-Defendant Pre-Deceased Cross-Complainants” is likewise based upon Colvin’s acts and omissions as administrator.
Colvin repeatedly emphasizes that the Websters’ cross-complaint is “essentially identical,” “a virtual duplicate,” and a “mirror” of her own, but she does not explain why, even if true, such similarity is pertinent to our inquiry. The implicit point appears to be that because Colvin sees all of the pleadings as arising out the will contest, that view somehow estopped the Websters from moving to strike her cross-complaint. No authority cited by Colvin, or known to us, supports such a proposition.
Colvin undercuts her point by asserting in her brief that “[The Websters’] cross-complaint is not between the same parties as the underlying elder abuse action filed by Appellant. Nor does the cross-complaint raise the same issues in Appellant’s . . . complaint for damages against [the Websters] for financial elder abuse.” In any event, as the foregoing analysis demonstrates, it is simply incorrect for Colvin to assert that the Websters “base their cross-complaint entirely on allegations in Appellant’s complaint.”
Thus, in light of our independent de novo review, we agree with the approach and the result adopted by Judge Mahoney. The allegations in the Websters’ cross-complaint referring to protected activity are, viewed in the light of the cross-complaint in its entirety, “ ‘merely incidental’ ” or “collateral allusions”; they are not reflective of “the principal thrust or gravamen” of the pleading. (Huntingdon, supra, 129 Cal.App.4th 1228, 1245; Thomas, supra, 126 Cal.App.4th 635, 653; Martinez, supra, 113 Cal.App.4th 181, 187-188.) In light of this conclusion, there is no need to determine whether Colvin satisfied the second prong of the anti-SLAPP analysis.
DISPOSITION
The purported appeal from the order granting the motion to permit the cross-complaint to remain on file is dismissed. The order denying the special motion to strike under section 425.16 is affirmed. Respondents shall recover their costs of appeal.
We concur: Haerle, Acting P.J., Lambden, J.
Although when filed in the probate department the pleading was originally designated as a “cross-complaint,” it was subsequently retitled as “Answer and Amended Petition,” presumably by court employees.
Colvin does not address the appealability of this order, as required by California Rules of Court, rule 8.204(a)(2)(B). The order is clearly of secondary importance to the order denying Colvin’s special motion. In fact, the order is redundant to that appealable order, and would survive or fail depending on the fate of the order denying the special motion. Put another way, if the special motion order is reversed, an appeal from the other order would be moot. Conversely, if the special motion order is affirmed, we cannot imagine circumstances that would justify reversing the other order. Thus, because it has no statutory sanction and would be moot, the appropriate course is to dismiss Colvin’s purported appeal from the order granting the Websters’ motion to allow their cross-complaint to remain filed. (E.g., Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541; Rossi v. Caire (1922) 189 Cal. 507, 508; Vernon v. State of California (2004) 116 Cal.App.4th 114, 120-121.)