Villas at Santana Park HOA v. Fed. Realty Investment Trust CA6

V
Filed 5/12/21 Villas at Santana Park HOA v. Fed. Realty Investment Trust CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                  IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


 VILLAS AT SANTANA PARK                                              H046073
 HOMEOWNERS ASSOCIATION,                                            (Santa Clara County
                                                                     Super. Ct. No. 17CV315739)
             Plaintiff and Appellant,

             v.

 FEDERAL REALTY INVESTMENT
 TRUST,

             Defendant and Respondent.


         Plaintiff and appellant Villas at Santana Park Homeowners Association (Villas or
plaintiff) is a non-profit corporation of 124 homes located next to Santana Row, a mixed-
use development in San Jose owned by defendant and respondent Federal Realty
Investment Trust (defendant). Defendant intends to construct a large building next to the
Villas homes. After defendant received a construction permit for the building from the
City of San Jose,1 Villas sued for fraud, alleging that defendant’s representatives had
made false statements to its members about the size of the proposed development.



         1
        In a separate case, Villas challenged, principally under the California
Environmental Quality Act, the City of San Jose’s issuance of a planned development
permit for construction of the building. In an unpublished opinion, a panel of this court
affirmed the trial court’s judgment in favor of the city. (Villas at Santana Park
Homeowners Association v. City of San Jose (Apr. 30, 2020, H045644).)
       Defendant filed an anti-SLAPP motion to strike Villas’s complaint under Code of
Civil Procedure section 425.16,2 which the trial court granted. Villas appeals the trial
court’s order. Villas asserts that this lawsuit, involving a private dispute between two
commercial entities, does not implicate any free speech or petitioning rights and is not a
SLAPP. Villas requests that we reverse the trial court’s order.
       For the reasons explained below, we affirm the trial court’s order granting
defendant’s anti-SLAPP motion.
                    I. FACTS AND PROCEDURAL BACKGROUND
       A.     Factual Background
       Defendant owns a large, mixed-use development known as Santana Row.3
Following certification of a 1998 environmental impact report, much of the Santana Row
development was constructed, but no building was built on a parcel that is the subject of
the current dispute (referred to by the parties and herein as “lot 12”), which is adjacent to
the Villas homes.
       Between 1997 and 2007, representatives from Villas and defendant had meetings
related to the Santana Row development, including discussions about how it would affect
the Villas homes. The Santana Row development was also the subject of municipal
hearings. As detailed further below, Villas alleges defendant’s representatives made
promises to its members that the development would not impair their sight lines and that
structures on lot 12 would consist of single-family homes no more than three stories tall.


       2
          “An anti-SLAPP motion seeks to strike a ‘[s]trategic lawsuit against public
participation,’ that is, a ‘SLAPP.’ ” (Wilson v. Cable News Network, Inc. (2019) 

7
Cal. 5th 871

, 882, fn. 2 (Wilson).)
        3
          We draw the following facts from the complaint, the supporting declarations
submitted by plaintiff in the trial court, and the documents submitted along with
defendant’s request for judicial notice which plaintiff does not dispute. We accept as
true, evidence favorable to the plaintiff at the second step of the anti-SLAPP analysis for
the purpose of resolving whether the trial court erred in its grant of defendant’s special
motion to strike. (See 

Wilson, supra

, 7 Cal.5th at p. 887.)
                                                 2
Nevertheless, in 2015, defendant applied for a permit to build on lot 12 a single
apartment building five-and-one-half-stories tall.
       B.     Complaint and Defendant’s Anti-SLAPP Motion
       In September 2017, Villas filed a lawsuit against defendant alleging it had
committed the torts of “fraud and deceit” and negligent misrepresentation. Both tort
claims are predicated on the same representations by defendant. Specifically, Villas
alleges that on a number of occasions from December 1997 through January 2007
defendant promised to “Plaintiff and the individual concerned owners of homes within
the Villas HOA that the newly proposed development of Santana Row would not affect
home values, the lifestyle, the quiet enjoyment of the owners [sic] homes and the sight
lines currently enjoyed by the residents.”
       According to the complaint, “[a]t that time the proposed development was very
much in doubt” as it was opposed by many residents of the City of San Jose, and
“[s]everal members of the City Council and [] the planning staff were similarly cautious”
about recommending the development of Santana Row. The complaint alleges that “[t]o
secure the support of the Plaintiff and the Villas owners, Defendant, and each of them,
told the Plaintiff that sight lines would be protected, that there would not be a sea of tall
buildings and that no building higher than 35 feet would be built within 30 feet of a
zoned single family home.”
       The complaint lists 274 occasions between 1997 and 2007 when defendant made
the alleged false statements. These include 10 municipal hearings before governmental
bodies of the City of San Jose, as well as meetings and “get-togethers” that included at
least two of defendant’s representatives and Villas’s representative, William Zahrt. In
addition to these hearings and meetings, two statements appear in documents: a letter “to
the Villas from Defendants” dated September 22, 2000 (which is attached to the

       4
       Villas argues the claims involve 28 statements made by defendant. Based on our
independent review, the complaint in fact alleges 27 statements.
                                                  3
complaint as an exhibit) and a December 1, 2006 “document and drawing depicting the
preservation of the site line and the 35-foot maximum height” (which is also attached to
the complaint as an exhibit).
       The complaint alleges that, in reliance on defendant’s promises, Villas and many
of its members appeared before San Jose officials in support of the proposed Santana
Row development. Villas alleges that, as a result of defendant’s actions, it and each of its
individual members have suffered damage to their “valuable property rights, including,
but not limited to, loss of sight lines, loss of property values and loss of quiet enjoyment
of their homes.”
       In response to Villas’s complaint, defendant filed an anti-SLAPP motion to strike
the complaint in its entirety. (Code Civ. Proc., § 425.16, subd. (b)(1).)5 Defendant
argued that Villas’s claims were based upon protected statements that fall into at least one
of the first three subclauses of section 426.15, subdivision (e) (§ 425.16, subd. (e)(1)-(3)),
and that Villas had not established a probability of prevailing on its claims (§ 425.16,
subd. (b)(1)) because the statements alleged in the complaint were absolutely privileged
under Civil Code section 47, subdivision (b).
       Defendant also filed in the trial court a request for judicial notice of documents
related to the Santana Row development, including resolutions and ordinances approved
by the City of San Jose.6 The first document attached to defendant’s request for judicial
notice is a resolution from the San Jose City Council from June 1998 stating its intent to
approve a zoning change to allow construction of the Santana Row development (then
referred to as “Town and Country Village”) and approving the final environmental
impact report that had been prepared for the project pursuant to CEQA. Another exhibit


       5
          Unspecified statutory references are to the Code of Civil Procedure.
       6
          The trial court granted defendant’s request for judicial notice in its entirety, and
plaintiff does not challenge that ruling here. We previously granted defendant’s
unopposed motion to augment the record on appeal with these documents.
                                                   4
to the request for judicial notice includes an ordinance and development plan from July
1998 that rezoned the property for Santana Row as a “Planned Development.” Others
include 2001 ordinances and development plans to rezone the area within the Santana
Row development, an ordinance and development plan related to Santana Row passed in
March 2002, a December 2003 ordinance and development plan related to Santana Row
effective in January 2004, and a December 2006 ordinance and development plan related
to Santana Row that would take effect in January 2007.
       Villas filed a written opposition to the anti-SLAPP motion and submitted two
declarations in support. One was from William Zahrt (Zahrt Declaration), the president
of Villas’s board of directors and its long-time representative in dealings with defendant
about Santana Row. Zahrt stated that he has owned a home in the Villas since September
1997. In the “early stages” of Santana Row’s development, Zahrt had attended four
informal meetings or “get-togethers” organized by defendant on December 10, 1997,
February 4, 1998, April 8, 1998, and April 21, 1998, at which defendant’s representatives
“outlined their development concepts” and promised that the plans for Santana Row
“would not affect the sight lines enjoyed by the residents.” According to Zahrt,
defendant’s representatives “specifically stated [at these four meetings] that there would
not be a ‘sea of buildings’ and that no building higher than 35 feet would be built within
30 feet of a zoned single family home” and that the structures “that would be constructed
on what became Lot 12 would be single-family homes no taller than 3 stories.”
       Following these meetings, Zahrt attended several municipal hearings in 1998 on
behalf of Villas related to planning and zoning for Santana Row. At these hearings,
defendant did not refer to the promises it made to plaintiff or state it did not intend to
honor them.
       Zahrt continued to attend other informal meetings held by defendant, which
occurred in 2000, 2001, 2002, 2003 and 2006, and he was “continually assured that
Defendant would honor their commitments.” In 2006, Zahrt received a document and
                                                  5
drawing from defendant’s representative that confirmed defendant’s promise to preserve
“the sight line” and showed “three-story structures bordering the Villas.” Zahrt
continued to voice support for the Santana Row development and attended hearings in
2006 and 2007. Zahrt only learned in 2015, when defendant proposed development of lot
12, that defendant’s promises made to induce plaintiff’s support were false.
       In addition to the Zahrt Declaration, Villas also submitted a declaration from
Kathy Cheng, a Villas homeowner, whose home is located “on the property line”
between the complex and lot 12. Cheng stated she attended four informal meetings
arranged by defendant in 1997 and 1998, which correspond to the four meetings in the
Zahrt Declaration, and other informal meetings with defendant over the years that are
also referenced in the Zahrt Declaration and the complaint. She stated defendant made
various promises, including that “the structures that would be constructed on what
became Lot 12 would be single-family homes no taller than 3 stories.” Cheng, like Zahrt,
attended “the several hearings before the City Planning Department and City Council
over the years prior to September 2015.”
       The trial court issued a tentative ruling in favor of defendant on its anti-SLAPP
motion. At a hearing on the motion Villas argued that the anti-SLAPP statute did not
apply, the defendant’s free speech and petition rights were not implicated in this case, and
the statute was “not intended for developers and applicants to city jurisdictions to get a
get-out-of-jail card for what they say and for fraud.” Defendant argued to the trial court
that plaintiff, in its opposition brief and at the hearing, had set forth new and different
allegations than the ones alleged in the complaint, but that regardless of the set of
allegations “the outcome is the same.” In response to defendant’s contention that it was
advancing new allegations, Villas denied that it had changed the allegations in the
complaint. Villas stated it did not intend to amend its complaint and “[w]hat we said in
the complaint is exactly true.” Villas cited to the trial court the decision in Lacher v.


                                                  6
Superior Court (1991) 

230 Cal. App. 3d 1038

(Lacher), which it characterized as “directly
on point.”
       C.     Trial Court’s Order Granting Defendant’s Anti-SLAPP Motion
       On June 29, 2018, the trial court issued a written order granting defendant’s anti-
SLAPP motion. The trial court found that defendant had met its initial burden under the
anti-SLAPP statute of demonstrating that Villas’s claims arise out of protected activity
under section 425.16, subdivision (e)(2), because the alleged misrepresentations “were
made in connection with an issue—the development of Santana Row—that was under
consideration and review by legislative bodies.” The trial court rejected Villas’s
contention that defendant’s misrepresentations were private in nature, reasoning that
“[t]he overall thrust of the complaint challenges the activity of pursuing governmental
approvals for the development of Santana Row, i.e., the complaint challenges the
statements Defendant made to marshal support for, and quell objections to, development
plans that were submitted [to] the San Jose City Council and Planning Commission.”
The trial court rejected Villas’s argument based on Lacher, because, although the case
bore factual similarities to the current dispute, it did not involve the anti-SLAPP statute.
After addressing other arguments raised by Villas, the trial court found that defendant had
met its threshold burden, shifting the burden to Villas to demonstrate success on the
merits of its claims.
       Turning to this step of the analysis under the anti-SLAPP statute, the trial court
found that Villas could not meet its burden to show that the challenged claims were
legally sufficient and factually substantiated, because defendant’s statements were
privileged under Civil Code section 47, subdivision (b). The trial court concluded that




                                                  7
the absolute privilege under this statutory provision “bars Plaintiff’s complaint.” The
trial court granted defendant’s motion to strike the complaint in its entirety.7
       In July 2018, based on its order granting defendant’s anti-SLAPP motion, the trial
court entered judgment in favor of defendant.
       Villas filed a timely notice of appeal of the trial court’s order and judgment.
                                     II. DISCUSSION
       On appeal, Villas contends that the trial court erred in deciding that defendant met
its threshold burden under the anti-SLAPP statute of showing that Villas’s tort claims
arise from defendant’s free speech or petitioning activities in connection with a public
issue. Villas argues its lawsuit involves private representations between “two
commercial entities attempting to achieve a mutually profitable arrangement” and the
“representations and resulting reliance did not have anything to do with public interest.”
Additionally, even assuming defendant’s activities were protected, Villas asserts it has
met its burden to show that there is a probability that it will prevail on the merits of the
complaint’s causes of action.
       A. Anti-SLAPP Statute
       Section 425.16, “commonly known as the anti-SLAPP statute, allows defendants
to request early judicial screening of legal claims targeting free speech or petitioning
activities.” (

Wilson, supra

, 7 Cal.5th at pp. 880–881.) The anti-SLAPP statute provides
a “procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of
constitutional rights.” (Rusheen v. Cohen (2006) 

37 Cal. 4th 1048

, 1055-1056 (Rusheen).)

       7
         The trial court also denied defendant’s request for attorney fees and costs
pursuant to section 425.16, subdivision (c), finding that defendant failed to substantiate
its request for fees. The trial court noted that defendant could obtain its fees through a
future motion. In its opening brief, plaintiff states the trial court later awarded defendant
$50,000 in fees plus certain costs which award “has been paid,” although the briefing and
order related to this award do not appear in the record on appeal. In addition, the trial
court denied plaintiff’s request for attorney fees since it did not prevail on the anti-
SLAPP motion.
                                                  8
That remedy “authorizes a special motion to strike claims ‘arising from any act of that
person in furtherance of the person’s right of petition or free speech under the United
States Constitution or the California Constitution in connection with a public issue.’
(§ 425.16, subd. (b)(1).)” (

Wilson, supra

, at p. 884.) By its own terms, the anti-SLAPP
statute is to “be construed broadly” in furtherance of its stated goals. (§ 425.16, subd. (a);
Barry v. State Bar of California (2017) 

2 Cal. 5th 318

, 321.)
              1. First Step of the Anti-SLAPP Analysis
       Courts evaluate an anti-SLAPP motion in two steps. (

Wilson, supra

, 7 Cal.5th at
p. 884.) At the first step, the court examines whether the moving defendant has
established “ ‘that the challenged allegations or claims “aris[e] from” protected activity in
which the defendant has engaged.’ ” (Ibid.) The defendant’s burden in the first step
involves making “two related showings”: “[c]omparing its statements and conduct
against the statute, it must demonstrate activity qualifying for protection. (See § 425.16,
subd. (e).) And comparing that protected activity against the complaint, it must also
demonstrate that the activity supplies one or more elements of a plaintiff’s claims.” (Id.
at p. 887.) “At this stage, the question is only whether a defendant has made out a prima
facie case that activity underlying a plaintiff’s claims is statutorily protected [citations.],
not whether it has shown its acts are ultimately lawful.” (Id. at p. 888.)
       A defendant meets this burden by demonstrating that he or she has engaged in
(1) “ ‘ “protected activity” ’ ” under the anti-SLAPP statute, and (2) the plaintiff’s
allegations “ ‘ “arise[] from” ’ ” that protected activity. (Laker v. Board of Trustees of
California State University (2019) 

32 Cal. App. 5th 745

, 760 (Laker).) A claim arises
from protected activity when that activity underlies or forms the basis for the claim.
(Park v. Board of Trustees of California State University (2017) 

2 Cal. 5th 1057

, 1062
(Park)). Courts must consequently distinguish “between activities that form the basis for
a claim and those that merely lead to the liability creating activity or provide evidentiary
support for the claim.” (Id. at p. 1064.)
                                                   9
       Relating to protected activity, section 425.16, subdivision (e), sets forth four
categories of protected activity: (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.”8 (§ 425.16, subd. (e).)
       “Consistent with the [anti-SLAPP] statute’s purpose, its text defines conduct in
furtherance of the rights of petition and free speech on a public issue not only by its
content, but also by its location, its audience, and its timing. (See § 425.16, subd. (e)(1)
[‘before a legislative, executive, or judicial proceeding’]; § 425.16, subd. (e)(2) [‘in
connection with an issue under consideration or review by’ a government entity];
§ 425.16, subd. (e)(3) [‘in a place open to the public or a public forum in connection with
an issue of public interest’].) Indeed, we have previously noted that the Legislature
‘ “equated a public issue with the authorized official proceeding to which it connects,” ’
effectively defining the protected status of the statement by the context in which it was
made.” 

(FilmOn.com, supra

, 7 Cal.5th at pp. 143–144, italics omitted.) “The common
thread that runs through subdivision (e)(1) through (e)(3) is that each provision protects
speech that contributes to the public discussion or resolution of public issues—a thread
that also ties these provisions together with the statute’s stated purpose of furthering


       8
         The fourth clause of section 425.16, subdivision (e), is commonly referred to as
the “catchall provision.” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 

7 Cal. 5th 133

,
144 (FilmOn.com).) Defendant focuses its argument on the first three clauses and does
not argue its statements are protected by the fourth.
                                                 10
‘continued participation in matters of public significance.’ (§ 425.16, subd. (a).)”
(

Wilson, supra

, 7 Cal.5th at p. 900.)
       “The first two clauses of subdivision (e) of section 425.16 ‘safeguard free speech
and petition conduct aimed at advancing self government, as well as conduct aimed at
more mundane pursuits’ and ‘all that matters is that the First Amendment activity take
place in an official proceeding or be made in connection with an issue being reviewed by
an official proceeding.’ [Citation.] A defendant who invokes either subparagraph (1) or
subparagraph (2) of subdivision (e) of section 425.16 ‘need not separately demonstrate
that the statement concerned an issue of public significance.’ ” 

(Laker, supra

, 32
Cal.App.5th at p. 764.) The moving defendant “ ‘need not prove that the challenged
conduct is protected by the First Amendment as a matter of law; only a prima facie
showing is required.’ ” (People ex rel. Fire Ins. Exchange v. Anapol (2012) 

211
Cal. App. 4th 809

, 822.)
       Where a pleaded cause of action includes allegations of both protected and
unprotected activity, the allegations that arise from unprotected activity are
“disregarded.” (Baral v. Schnitt (2016) 

1 Cal. 5th 376

, 396 (Baral); see 

Laker, supra

, 32
Cal.App.5th at p. 772.) At the same time, allegations of protected activity that “are
‘merely incidental’ or ‘collateral’ are not subject to section 425.16.” (Baral, at p. 394.)9




       9
         Following Baral, we decline to employ the legal standard used by the parties in
their briefing that focuses on the “gravamen” or overall “thrust” of plaintiff’s claims,
which was also applied by the trial court. As a panel of this court observed in Laker, the
Courts of Appeal are divided on whether, after Baral, it is appropriate for courts to
disregard allegations that do not constitute the “gravamen” of the plaintiff’s cause of
action. 

(Laker, supra

, 32 Cal.App.5th at p. 772, fn. 19.) In Laker, this court agreed with
the Court of Appeal in Sheley v. Harrop (2017) 

9 Cal. App. 5th 1147

, 1169 that Baral has
eliminated the “gravamen” analysis, and we therefore do not employ it here. (Laker, at
p. 772, fn. 19.)
                                                 11
              2. Second Step of the Anti-SLAPP Analysis
       If the defendant makes its threshold showing under step one of the anti-SLAPP
analysis, the burden shifts at the second step to Villas to demonstrate the merit of the
challenged cause of action by establishing a probability of success. (§ 425.16, subd.
(b)(1); 

Wilson, supra

, 7 Cal.5th at p. 884.) The California Supreme Court has described
this second step of the anti-SLAPP analysis as a “ ‘summary-judgment-like procedure.’ ”

(Baral, supra

, 1 Cal.5th at p. 384.) “In deciding an anti-SLAPP motion, a court must at
the second step ‘ “accept as true the evidence favorable to the plaintiff.” ’ ” (Wilson, at
p. 887.) “If the plaintiff is unable to demonstrate that his or her claim has at least
minimal merit, then the trial court should deem the cause of action a SLAPP and should
strike it.” 

(Laker, supra

, 32 Cal.App.5th at p. 760.)
              3. Standard of Review
       We review de novo the trial court’s order granting defendant’s anti-SLAPP
motion. (Monster Energy Co. v. Schechter (2019) 

7 Cal. 5th 781

, 788.) “We exercise
independent judgment in determining whether, based on our own review of the record,
the challenged claims arise from protected activity.” 

(Park, supra

, 2 Cal.5th at p. 1067.)
“In addition to the pleadings, we may consider affidavits concerning the facts upon which
liability is based. [Citations.] We do not, however, weigh the evidence, but accept
plaintiff’s submissions as true and consider only whether any contrary evidence from the
defendant establishes its entitlement to prevail as a matter of law.” (Ibid.)
       With these principles in mind, we apply the anti-SLAPP statute to Villas’s claims.
       B. Application of the Anti-SLAPP Statute to Villas’s Claims
       We first examine whether defendant has made out “a prima facie case that activity
underlying a plaintiff’s claims is statutorily protected.” (

Wilson, supra

, 7 Cal.5th at
p. 888.) The trial court here concluded that defendant met its initial burden under section
425.16, subdivision (e)(2), which applies to: “any written or oral statement or writing
made in connection with an issue under consideration or review by a legislative,
                                                 12
executive, or judicial body, or any other official proceeding authorized by law.”
(§ 425.16, subd. (e)(2).) The trial court found that “the alleged misrepresentations were
made in furtherance of Defendant’s right to petition because they were made by
Defendant to marshal support for, and quell objections to, development plans that were to
be submitted, and were in fact presented to, the San Jose City Council and Planning
Commission.”
       On appeal, Villas contends that defendant’s statements are not statutorily protected
because “the statements, promises and assurances on which Appellant’s case are based
were made privately and not to advance or further any action or matter pending before
any judicial or municipal body and were made when no litigation was anticipated.”
Defendant continues to maintain that all the 27 statements Villas challenges fall within
the parameters of section 425.16, subdivision (e)(2). Additionally, defendant contends
the 10 statements made in municipal hearings also fall under the parameters of the first
clause of section 425.16, subdivision (e)(1) and that all 27 statements are protected by
section 425.16, subdivision (e)(3).
       For each category of conduct, we must decide whether defendant has made “a
prima facie showing that [its] conduct falls within one of the categories set out in section
425.16, subdivision (e).” 

(Laker, supra

, 32 Cal.App.5th at p. 763.) Following Baral, we
decline to adopt Villas’s framework based on pleaded causes of action and instead focus
on identifying the “allegations of protected activity, and the claims for relief supported by
them.” 

(Baral, supra

, 1 Cal.5th at p. 396.) We separate defendant’s statements made at
municipal hearings from those made in other settings. (See 

FilmOn.com, supra

, 7 Cal.5th
at pp. 143–144.)
              1. Statements Made by Defendant at Municipal Hearings
       Paragraphs 6 and 7 of the complaint set forth defendant’s statements that underly
each of Villas’s tort claims, including the promise that neighboring residents would not
observe a “ ‘sea of tall buildings’ ” as a result of the Santana Row development.
                                                13
       Paragraph 8 of the complaint specifies the 27 occasions at which these statements
were made. According to the complaint, defendant made 10 of the statements in city
hearings on the Santana Row project: (1) “April 22, 1998 at a hearing held in the City of
San Jose Council Chambers”; (2) “May 13, 1998 at a rezoning hearing in the Council
Chambers”; (3) “May 27, 1998 at a Planning Commission EIR and rezoning hearing in
the Council Chambers”; (4) “June 16, 1998 at a hearing in the Council Chambers”; (5)
“June 30, 1998 at a hearing in the Council Chambers”; (6) “November 8, 2006 at a San
Jose Planning Commission hearing”; (7) “November 29, 2006 at a San Jose Planning
Commission hearing”; (8) “December 5, 2006 at a City Council meeting”; (9) “December
6, 2006 at a Planning Director’s hearing”; and (10) “January 31, 2007 at a Planning
Commission hearing.”
       Defendant contends these 10 statements made at municipal hearings fall under the
parameters of the first clause of section 425.16, subdivision (e). We agree. In pertinent
part, section 425.16, subdivision (e), states: “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.” (§ 425.16, subd. (e)(1).)
       Villas does not challenge defendant’s assertion that these planning commission
and city council hearings constitute an “official proceeding,” and we agree that they do.
(See Midland Pacific Building Corp. v. King (2007) 

157 Cal. App. 4th 264

, 272.)
       In response to defendant’s argument that its statements in the municipal hearings
are a protected activity under 425.16, subdivision (e), Villas suggests that the complaint’s
allegations related to the city hearings are “incidental” or appear in the complaint only for
context to “demonstrate the complete significant chronology of the development of
Santana Row over the years.” Villas argues that “[t]he appearance before the City
Council was incidental to the gravamen of the Appellant’s claim of fraud, deceit and
                                                 14
misrepresentation.” (Italics added.) As the California Supreme Court explained in Baral,
allegations of protected activity that “are ‘merely incidental’ or ‘collateral’ are not subject
to section 425.16.” 

(Baral, supra

, 1 Cal.5th at p. 394.)
       Based on our independent review of the complaint and Villas’s statement in the
trial court that it did not seek amendment of its complaint, we disagree with Villas’s
characterization of its claims as based only on defendant appearing at those hearings,
rather than making statements at them. The complaint lists 10 statements related to city
hearings that are predicate statements for its fraud claims.
       In sum, we conclude that, as to defendant’s alleged conduct at the 10 municipal
hearings, defendant met its prima facie burden to show that the 10 statements it allegedly
made constitute protected activity under section 425.16, subdivision (e)(1). The burden
therefore shifts to Villas to demonstrate the merit of the claims by establishing a
probability of success. 

(Baral, supra

, 1 Cal.5th at p. 384.) Before turning to that
question, we examine whether the remaining statements at issue in Villas’s complaint—
the other 17 statements made in private meetings or that appear in written documents—
are protected activity under the anti-SLAPP statute.
              2. Statements Made by Defendant Outside City Hearings
       The remaining 17 statements, 15 of which appear to be oral statements made by
defendant at various meetings it organized for the purpose of seeking Villas’s support for
the Santana Row development. Specifically, within paragraph 8 of the complaint and the
Zahrt Declaration that Villas submitted as evidence in opposition to the anti-SLAPP
motion, the following 15 non-hearing meetings are alleged
       (1) “Dec. 10, 1997 at a Town and Country Village meeting conducted by
Defendants”; (2) “February 4, 1998 at a Town and Country Village meeting conducted by
Defendants”; (3) “April 8, 1998 at a Town and Country Village meeting conducted by
Defendants at which meeting Defendants produced models of proposed buildings which
demonstrated the guarantees that Defendants had made to induce Plaintiff as listed in
                                                 15
paragraphs 6 and 7 [of the complaint]”; (4) “April 21, 1998 at a Town and Country
Village meeting conducted by Defendants at which meeting Defendants produced models
of proposed buildings which demonstrated the guarantees that Defendants had made to
induce Plaintiffs as listed in paragraphs 6 and 7 [of the complaint]”; (5) “October 28,
1999 at an update meeting conducted by Defendants for the Villas”; (6) “May 1, 2000 at
a meeting conducted by Defendants for the Villas”; (7) “September 28, 2000 by [two of
defendant’s representatives] at a meeting for the Villas”;(8) “October 25, 2000 at a
meeting with [two of defendant’s representatives]”; (9) “October 30, 2000 at a meeting at
Lou’s Village restaurant”; (10) “April 30, 2001 at a meeting at Lou’s Village restaurant”;
(11) “August 21, 2002 at a meeting at Defendant’s offices”; (12) “March 22, 2003 at a
reception hosted by Defendant at the Left Bank”; (13) “May 8, 2006 at a meeting hosted
by Defendant at 3055 Olin Avenue”; (14) “May 15, 2006 at a meeting hosted by
Defendant at 3055 Olin Avenue”; and (15) “August 21, 2006 at a meeting hosted by
Defendant at Hotel Valencia.”
       In addition to statements made on these 15 occasions, the complaint also alleges
statements made in two documents attached to the complaint: a letter “to the Villas from
Defendants” dated September 22, 2000 (which is attached to the complaint as an exhibit)
and a December 1, 2006 “document and drawing depicting the preservation of the site
line and the 35-foot maximum height” (which is also attached to the complaint as an
exhibit).
       Defendant claims that all of these 17 statements fall within the ambit of section
425.16, subdivision (e)(2), because they concern the “pending applications to develop
Santana Row, and the potential impact on adjacent property owners.” Defendant further
notes that it is undisputed that the “development of Santana Row was under review by the
City when [defendant] allegedly made these statements” and “[i]n fact, the development
of Santana Row was under almost continuous consideration by the City from 1998
through at least 2016.”
                                                16
       As noted above, section 425.16, subdivision (e)(2) (hereafter section
425.16(e)(2)), protects “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(e)(2)). “By requiring the
communication to be in connection ‘with an issue under consideration or review’
(§ 425.16, subd. (e)(2), italics added), the terms of subdivision (e)(2) make clear that ‘it is
insufficient to assert that the acts alleged were “in connection with” an official
proceeding.’ (Paul v. Friedman (2002) 

95 Cal. App. 4th 853

, 867.) Instead, ‘[t]here must
be a connection with an issue under review in that proceeding.’ ” (Rand Resources, LLC
v. City of Carson (2019) 

6 Cal. 5th 610

, 620 (Rand).)
       Section 425.16(e)(2) “appears to contemplate an ongoing—or, at the very least,
immediately pending—official proceeding. Conversely, if an issue is not presently
‘under consideration or review’ by such authorized bodies, then no expression—even if
related to that issue—could be ‘made in connection with an issue under consideration or
review.’ ” 

(Rand, supra

, 6 Cal.5th at p. 627.) In Rand, the California Supreme Court
held that a statement underlying a claim for promissory fraud was not protected under
section 425.16(e)(2) because it was made “about two years before the renewal issue even
came before the City Council.” (Rand, at p. 627.) The Supreme Court stated that
“ ‘[U]nder consideration or review’ does not mean any issue a legislative body may
conceivably decide to take up months or years in the future. [The city attorney’s]
statement was not made at the time or on the eve of the renewal decision; it was made
years before the issue came under review by the City Council. [The city attorney] did not
even refer to the City Council’s review process in his promise.” (Ibid.)
       Here, after engaging in de novo review of the evidence in the record and applying
the proper presumptions, we conclude that the remaining 17 statements upon which
Villas’s tort claims are predicated fall under section 425.16(e)(2). Defendant has
established that the issue of the development of Santana Row was being discussed in
                                                 17
official proceedings related to that development during the time period in which
defendant made the statements. For example, as alleged in the complaint and the Zahrt
Declaration, there were numerous municipal hearings in 1998 related to the development
plans for the Santana Row project, and four of the informal meetings alleged by Villas
occurred in the months prior to those hearings. Moreover, by Villas’s own admission in
its complaint and the evidence it marshalled to oppose the anti-SLAPP motion, all of
these statements in late 1997 and in 1998 were made to garner support for the Santana
Row development and “attempted to gain the support of Plaintiff before the City
Agencies.”
       Villas appears to principally argue that the “private” nature of these meetings is
dispositive and takes them outside the scope of section 425.16(e)(2). We disagree.
While the location and audience are important factors in the anti-SLAPP analysis (see

FilmOn.com, supra

, 7 Cal.5th at pp. 143–144), the private nature of the conduct itself
does not bar the application of section 425.16(e)(2). That provision does not require the
conduct to occur in a public setting or to be part of the “public record.” (See City of
Costa Mesa v. D’Alessio Investments, LLC (2013) 

214 Cal. App. 4th 358

, 371 [anti-
SLAPP statute extends to private conversations]; Contemporary Services Corporation v.
Staff Pro. Inc. (2007) 

152 Cal. App. 4th 1043

, 1050, 1054–1055 [concluding that a
“litigation update” e-mail sent from a president of a company who was named as a
defendant to nine individuals who were actual or potential customers fell within the
parameters of section 425.16(e)(2)]; cf. Averill v. Superior Court (1996) 

42 Cal. App. 4th
1170

, 1175 [“We therefore cannot say the Legislature intended to exclude private
conversations from protection under the [anti-SLAPP] statute since the list of covered
activities does not act to eliminate such conversations from such protection.”].)
       The critical inquiry is whether the statements alleged to have been made by
defendant relate to an issue under active consideration by the city council or other
municipal entity and in ongoing proceedings related to the development of Santana Row.
                                                18
Based on the record, we conclude that the challenged statements did relate to a matter
which was under contemporaneous public review. Villas’s evidence, even accepting it as
true, does not defeat defendant’s prima facie showing that section 425.16(e)(2) applies.
       We have also considered Oakland Bulk and Oversized Terminal, LLC v. City of
Oakland (2020) 

54 Cal. App. 5th 738

(Oakland Bulk), a case Villas describes as
“particularly relevant.” However, Oakland Bulk is factually distinguishable and does not
support Villas’s contention that defendant’s statements are not protected activity. In
Oakland Bulk, the First District Court of Appeal, Division 2, addressed an anti-SLAPP
motion brought by the City of Oakland after it was sued by two entities for breaches of
contract and torts related to a series of agreements about the development of the land at
the site of the former Oakland Army Base. (Id. at pp. 741, 745.) In that case, plaintiffs’
claims arose from a variety of allegedly wrongful acts by the City including “the City’s
refusals to cooperate with plaintiffs to pursue available funding for the project; to
cooperate with [plaintiff]’s effort to obtain approvals from the Surface Transportation
Board (STB); to issue permits, including a fence permit to secure the West Gateway; to
use commercially reasonable efforts to execute the rail access agreement; to honor
[coplaintiff]’s invocation of force majeure (the definition of which includes ‘acts of the
government, acts of the other Party’) after the City’s actions caused development delays.
They also include private and public statements by City officials threatening to kill the
project if plaintiffs do not comply with the illegal resolution banning coal.” (Id. at
p. 754.)
       The Court of Appeal noted that the city, in defending its anti-SLAPP motion,
“simply ignores plaintiffs’ substantiated allegations, and replaces those allegations with
its own version of facts to attempt to show the claims arise out of protected activity.”
(Oakland 

Bulk, supra

, 54 Cal.App.5th at p. 755.) Addressing the multiple tort claims in
particular, the court noted “that the City does not even attempt to analyze the conduct
underlying any of plaintiffs’ seven tort claims” and “[i]nstead, the City argues that ‘each
                                                 19
tort claim . . . incorporates by reference all of these specific alleged instances of
breach.’ ” (Id. at p. 758.) The court further decided that “while plaintiffs’ tort claims
(i.e., the fourth through tenth causes of action) do incorporate prior paragraphs of the
complaint, the majority of the incorporated allegations of protected activity provide the
context of the claims.” (Ibid.) Here, by contrast, defendant has not ignored or
recharacterized plaintiff’s allegations but rather has correctly relied upon Villas’s own
allegations in analyzing the applicability of section 425.16(e)(2) to the statements alleged
in the complaint. Therefore, defendant’s anti-SLAPP motion does not suffer from the
same infirmities identified by the Court of Appeal in Oakland Bulk.
       Regarding the “ ‘arising from’ test” that forms part of the first step of the anti-
SLAPP analysis 

(Laker, supra

, 32 Cal.App.5th at p. 766), we decide that defendant’s
statements also satisfy this standard. Here, the protected conduct—the 27 statements
discussed above—are not merely “evidence” of the claim but rather form the basis of
plaintiff’s two tort claims. (See 

Park, supra

, 2 Cal.5th at p. 1064.) The complaint
specifically incorporates all the statements, including the 10 statements at the municipal
hearings, as the predicate statements that underlie both the torts of deceit and negligent
misrepresentation.10




       10
           “ ‘The elements of fraud, which give rise to the tort action for deceit, are
(a) misrepresentation (false representation, concealment, or nondisclosure); (b)
knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance;
(d) justifiable reliance; and (e) resulting damage.’ ” (Lazar v. Superior Court (1996) 

12
Cal. 4th 631

, 638.) “The tort of negligent misrepresentation, [is] a species of the tort of
deceit.” (Conroy v. Regents of University of California (2009) 

45 Cal. 4th 1244

, 1255.)
“The elements of a negligent misrepresentation are ‘(1) the misrepresentation of a past or
existing material fact, (2) without reasonable ground for believing it to be true, (3) with
intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on
the misrepresentation, and (5) resulting damage.’ Negligent misrepresentation does not
require knowledge of falsity, unlike a cause of action for fraud.” (Tindell v. Murphy
(2018) 

22 Cal. App. 5th 1239

, 1252.)
                                                  20
       For these reasons, we decide that defendant “has made out a prima facie case that
activity underlying a plaintiff’s claims is statutorily protected” under section
425.16(e)(2).11 (See 

Wilson, supra

, 7 Cal.5th at p. 888.) We now turn to the second step
of the anti-SLAPP analysis.
              3. Probability of Success on the Merits
       “In the second step of the anti-SLAPP analysis, ‘the burden shifts to the plaintiff
to demonstrate that each challenged claim based on protected activity is legally sufficient
and factually substantiated. The court, without resolving evidentiary conflicts, must
determine whether the plaintiff’s showing, if accepted by the trier of fact, would be
sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of
protected activity supporting the stricken claim are eliminated from the complaint, unless
they also support a distinct claim on which the plaintiff has shown a probability of
prevailing.’ 

(Baral, supra

, 1 Cal.5th at p. 396.) The plaintiff must demonstrate this
probability of success with admissible evidence.” 

(Laker, supra

, 32 Cal.App.5th at
p. 768.)
       Defendant contends that Villas has failed to carry its burden of showing a
probability of success for two independent reasons. First, as found by the trial court,
defendant states Villas cannot prevail on its tort claims because they are based on
statements that are absolutely privileged under Civil Code section 47, subdivision (b).
Second, defendant argues Villas failed to produce admissible evidence to support each
element of its claims for “[f]raud and [d]eceit” and negligent misrepresentation, for
example because the alleged statements were opinions rather than actionable
misrepresentations, the complaint itself shows defendant did not misrepresent its

       11
          Having reached the conclusion that the statements in plaintiff’s fraud claims are
protected under section 425.16(e)(2), we need not address defendant’s additional
argument that they are also protected under the third clause of section 425.16, subdivision
(e) (see § 425.16, subd. (e)(3) [“in a place open to the public or a public forum in
connection with an issue of public interest”].)
                                                 21
intention regarding the 35 foot height limit, and Villas produced no admissible evidence
regarding the element of damages.
       Turning to the absolute privilege under Civil Code section 47, subdivision (b)
(hereafter Civil Code section 47(b)), the California Supreme Court has explained that
“[s]ection 47 [of the Civil Code] establishes a privilege that bars liability in tort for the
making of certain statements. Pursuant to section 47(b), the privilege bars a civil action
for damages for communications made ‘[i]n any (1) legislative proceeding, (2) judicial
proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation
or course of any other proceeding authorized by law and reviewable pursuant to [statutes
governing writs of mandate],’ with certain statutory exceptions that do not apply to the
present case. The privilege established by this subdivision often is referred to as an
‘absolute’ privilege, and it bars all tort causes of action except a claim for malicious
prosecution.” (Hagberg v. California Federal Bank (2004) 

32 Cal. 4th 350

, 360
(Hagberg); see also Olsen v. Harbison (2010) 

191 Cal. App. 4th 325

, 333 [noting that the
privilege “immunizes defendants from virtually any tort liability (including claims for
fraud), with the sole exception of causes of action for malicious prosecution”].)
       “By the terms of the statute, statements that are made in quasi-judicial
proceedings, or ‘any other official proceeding authorized by law’ (§ 47(b)), are privileged
to the same extent as statements made in the course of a judicial proceeding.” 

(Hagberg,
supra

, 32 Cal.4th at p. 362.) “Any publication made in a city planning commission or
city council proceedings is within the protection of that section [then codified as Civil
Code section 47, subdivision 2] though the proceedings are not strictly judicial.” (Pettitt
v. Levy (1972) 

28 Cal. App. 3d 484

, 488 (Pettitt); see also Cayley v. Nunn (1987) 

190
Cal. App. 3d 300

, 303 (Cayley) [stating “the privilege of Civil Code section 47,
subdivision 2 applies to local city council proceedings”].)
       “The absolute privilege attaches to any publication that has any reasonable relation
to the action and is made to achieve the objects of the litigation even though published
                                                  22
outside the courtroom and no function of the court or its officers is involved. The
publication need not be pertinent, relevant or material in a technical sense to any issue if
it has some connection or relation to the proceedings.” 

(Pettitt, supra

, 28 Cal.App.3d at
p. 489.) “To accomplish the purpose of judicial or quasi-judicial proceedings, it is
obvious that the parties or persons interested must confer and must marshal their
evidence for presentation at the hearing. The right of private parties to combine and
make presentations to an official meeting and, as a necessary incident thereto, to prepare
materials to be presented is a fundamental adjunct to the right of access to judicial and
quasi-judicial proceedings. To make such preparations and presentations effective, there
must be an open channel of communication between the persons interested and the
forum, unchilled by the thought of subsequent judicial action against such participants;
provided always, of course, that such preliminary meetings, conduct and activities are
directed toward the achievement of the objects of the litigation or other proceedings.”
(Id. at pp. 490–491.)
       Furthermore, the California Supreme Court has held that “[i]t is not required that
the statement be made during the proceeding itself.” 

(Hagberg, supra

, 32 Cal.4th at
p. 368; see also Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 

47 Cal. App. 4th
777

, 781–783 [privilege extended to communications between private parties regarding
whether the parties should urge a division of the Attorney General’s to investigate a
recording studio “preliminary to the institution of an official proceeding”].) “Any doubt
as to whether the privilege applies is resolved in favor of applying it.” (Adams v.
Superior Court (1992) 

2 Cal. App. 4th 521

, 529.)
       If the challenged action falls within the litigation privilege, the trial court must
grant an anti-SLAPP motion. (See 

Rusheen, supra

, 37 Cal.4th at p. 1065.) In the anti-
SLAPP context, the litigation privilege presents “a substantive defense a plaintiff must
overcome to demonstrate a probability of prevailing.” (Flatley v. Mauro (2006) 

39
Cal. 4th 299

, 323.) “While the defendants bear the burden of proof on any affirmative
                                                  23
defense, [plaintiff] retains the burden to show, under the second step of the anti-SLAPP
analysis, that he has a probability of prevailing on the merits of the claim.” 

(Laker,
supra

, 32 Cal.App.5th at p. 769.)
       Guided by the foregoing principles, we conclude that the 27 statements fall under
the litigation privilege because they are directly connected to the proceedings before
municipal entities examining the Santana Row project. For the reasons we have already
explained, the 27 statements are connected to the ongoing development of Santana Row
and are thus also “ ‘logically related to the [official proceeding].’ ” 

Laker, supra

, 32
Cal.App.5th at p. 770.; see also Healy v. Tuscany Hills Landscape & Recreation Corp.
(2006) 

137 Cal. App. 4th 1

, 5–6 [holding, in the context of a judicial proceeding, that
“[b]ecause one purpose of the letter was to inform members of the association of pending
litigation involving the association, the letter is unquestionably ‘in connection with’
judicial proceedings (§ 425.16, subd. (e)(2)) and bears ‘ “some relation” ’ to judicial
proceedings.”].)
       

Cayley, supra

, 

190 Cal. App. 3d 300

, is instructive. In Cayley, the appellate court
stated “the alleged slanderous statements were made during preliminary conversations
while defendants were marshalling evidence and preparing for their presentation at the
city council meeting” and “[t]herefore, defendants’ statements cannot be considered
irrelevant to the proceedings and they were directed toward the achievement of the
objects of the proceeding.” (Id. at p. 304)
       Villas does not meaningfully distinguish Cayley or provide any authority for the
proposition that the absolute privilege does not apply under these circumstances. Villas
chiefly relies, as it did in the trial court, on 

Lacher, supra

, 

230 Cal. App. 3d 1038

. Villas
acknowledges Lacher was decided before the enactment of the anti-SLAPP statute but
argues the case is “evidence of the probability of success” of its suit against defendant.
Villas points to the factual similarities of Lacher. In that case, plaintiffs had a home near
a “residential development being built” and the homeowners sued the developer alleging
                                                 24
“the developer fraudulently induced their support and acquiescence to obtain the required
governmental approval for the project.” (Lacher, at p. 1042.) The developer made
various promises to interested neighbors, who were primarily concerned with “protecting
their views,” including a promise that houses built along a street “would be limited to one
story above street level.” (Id. at p. 1044.)
       While we agree the facts in that case are similar to the allegations Villas makes
here, Lacher is not legally relevant to the application of the anti-SLAPP statute. Lacher
considered various challenges to the adequacy of the complaint, such as whether the
developer defendant owed a duty of care to the plaintiffs, whether the complaint
sufficiently alleged reliance and causation, and the availability of certain statutory
defenses. (

Lacher, supra

, 230 Cal.App.3d at pp. 1042–1043.) Notably—and fatal to the
utility of Villa’s reliance on it here—the court in Lacher did not consider or mention the
anti-SLAPP statute, which had not yet been enacted. (See 

Wilson, supra

, 7 Cal.5th at
p. 883 [the anti-SLAPP statute was enacted by the Legislature in 1992]). Nor did the
case mention or discuss the concept of the litigation privilege or discuss or apply Civil
Code section 47(b) to the circumstances of that case. Lacher therefore has no relevance
to any of the dispositive issues in this appeal.
       In sum, we decide that Villas cannot carry its burden of establishing a probability
of success on the merits because the absolute privilege of Civil Code section 47(b)
protects defendant’s statements that underlie the causes of action in Villas’s complaint.
Therefore, the trial court properly granted defendant’s motion to strike the complaint
under section 425.16.
                                    III. DISPOSITION
       The June 29, 2018 order granting defendant’s anti-SLAPP motion and the
judgment appealed from are affirmed. Respondent is entitled to costs on appeal.




                                                   25
                                      ______________________________________
                                                 Danner, J.




WE CONCUR:




____________________________________
Greenwood, P.J.




____________________________________
Elia, J.




H046073
Villas at Santana Park HOA v. Federal Real Estate Investment

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