PERLUSS, P. J.
The Village Coffee Roaster, its president, Louis D. Berkman, and its business and operations manager, Dustin Troyan appeal from an order denying their special motion to strike pursuant to Code of Civil Procedure section 425.16
Regency filed its complaint for trespass, nuisance and injunctive relief against 500 Doe defendants on September 24, 2009, alleging each defendant was responsible in some manner for conducting classic car shows (vintage, exotic and "high end" vehicles) in the parking lot areas of the El Camino Shopping Center on weekends. Regency alleged it owns the areas of the shopping center not under lease to various tenants (that is, the common area sidewalks and parking lots); those areas are under its direct management and control; and it has not given its permission or consent for the car shows. To the contrary, Regency alleged that on multiple occasions it had asked defendants to stop their participation in the shows, yet they continued to enter the shopping center to engage in them. This conduct is alleged to constitute a trespass (first cause of action) and a continuing private nuisance (second cause of action) insofar as it interferes with Regency's use and enjoyment of its private property.
On October 4, 2009 Regency served the complaint, together with an amendment to complaint (fictitious/incorrect name) on Berkman as Doe 2 and Village Coffee Roaster as Doe 3. Troyan was served with the same documents as Doe 1 at approximately the same time.
On October 19, 2009 Village Coffee Roaster, Berkman and Troyan filed a special motion to strike the complaint pursuant to section 425.16, arguing the weekly gatherings for car shows on shopping center grounds constituted protected First Amendment activity and, as Regency's tenant, Village Coffee Roaster and its executives have absolute defenses to the trespass and nuisance claims.
In their declarations in support of the motion Berkman and Troyan explained Village Coffee Roaster first leased retail space in the El Camino Shopping Center, an outdoor mall with customer seating areas located throughout, in 1990. In March 2004, after becoming aware that a group of classic and exotic car owners had begun coming to the shopping center for coffee on Sunday mornings, Village Coffee Roasters began promoting "Euro Sunday" as a form of advertising to bring more customers to the shopping center. In 2005, prior to Regency's ownership of the shopping center, the former manager of the center notified Village Coffee Roaster to stop promoting or advertising Euro Sunday. According to Berkman and Troyan, Village Coffee Roasters complied with that request.
Car aficionados (both owners and others) continued to come to the shopping center on Sunday mornings for coffee and to admire the unusual or expensive cars that were present. (According to the declaration of the manager of the shopping center, submitted in opposition to the special motion to strike, for the past few years members of the public came to view cars every Sunday, but "[o]n the last Sunday of the month, large crowds, often in excess of several hundred people, attend these shows.") Information about the activity (whether denominated a "car show" or "a casual get-together of car fans at a local coffee house") was apparently available on several different websites oriented to car enthusiasts. In January 2009 Regency, which now owned and managed the shopping center, requested removal of the information from the websites. In June 2009 Regency had letters hand-delivered to individuals in attendance at a Sunday show, notifying them that Regency "does not allow or approve of any car shows at the center," and warning them that conducting the car show "constitutes trespass."
In their motion Village Coffee Roaster, Berkman and Troyan argued, under Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 (Pruneyard), a shopping mall open to the general public is a public forum and asserted any issue in which the public takes an interest, including classic automobiles and sports cars, is of "public interest." Regency's trespass and nuisance action, they contended, "not only disregards the defendants' rights to be in areas open to the general public, to communicate freely, to associate with one another, and to express themselves, its complaint punishes the exercise of all those rights." On the merits Village Coffee Roaster, Berkman and Troyan argued, because Village Coffee Roaster has a lease and a concomitant right to use the common areas of the shopping center, it is impossible for Regency to succeed on the merits of its trespass action. Although they conceded it is theoretically possible for a tenant to create a nuisance upon leased property, they insisted the complaint failed to allege any facts involving conduct by them that could be considered a nuisance.
In declarations from its general manager and property administrator accompanying its opposition papers, Regency explained it decided to stop the car shows because "[t]he number of people milling around the cars created a heightened chance for either personal injury or property damage." When the attendees ignored Regency's request that the shows no longer be held in the shopping center's parking lot areas, Regency filed its action for trespass and nuisance. Regency's counsel also submitted a declaration stating they were unaware at the time the lawsuit was first filed whether Village Coffee Roaster, Berkman and Troyan should be named as defendants, but further research revealed they were involved with the promotion of the car shows. Accordingly, they were added as defendants in place of Doe defendants 1, 2 and 3.
On the merits of the special motion to strike, Regency asserted neither cause of action in its complaint arose from Village Coffee Roaster, Berkman and Troyan's protected speech or petitioning activity in connection with a public issue. Regency argued promoting and running a car show does not fall within the ambit of Pruneyard, supra, 23 Cal.3d 899, which recognized the First Amendment right of a "handful" of "orderly persons soliciting signatures" to circulate petitions at a large regional shopping center, and, in any event, conducting a weekly car show violated reasonable time, place and manner regulations that Regency had imposed on the use of the common areas of its property. Regency also argued a car show, even one attended by several hundred people, does not implicate a public issue or issue of public interest within the meaning of section 425.16. Finally, Regency contended the evidence submitted with its opposition papers established a prima facie case for trespass and nuisance.
Following receipt of a reply memorandum and after hearing oral argument, the trial court denied the special motion to strike, finding "[a] private self-proclaimed car show with a few hundred attendees is not a matter of public interest." The court also concluded Pruneyard was "distinguishable on its facts, and does not apply here." Finally, the court ruled, even if it were assumed Village Coffee Roaster, Berman and Troyan's activity in connection with the car shows was protected, Regency had met its burden of showing by admissible evidence a prima facie case for trespass and nuisance: "Plaintiff owns the property in question, and defendants are on the property for purposes that are not permitted by plaintiff, to wit, the car show."
Section 425.16 provides, "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).)
In ruling on a motion under section 425.16, the trial court engages in a two-step process. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken `in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).) 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.)
In terms of the so-called threshold issue, the moving party's burden is to show "the challenged cause of action arises from protected activity." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 616, fn. 10.) "[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. [Citations.] `A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause [of action] fits one of the categories spelled out in section 425.16, subdivision (e) . . . .'" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) "If the defendant does not demonstrate this initial prong, the court should deny the anti-SLAPP motion and need not address the second step." (Hylton v. Frank Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271.)
If the defendant establishes the statute applies, the burden shifts to the plaintiff to demonstrate a "probability" of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) In deciding the question of potential merit, the trial court properly considers the pleadings and evidentiary submissions of both the plaintiff and the defendant, but may not weigh the credibility or comparative strength of any competing evidence. (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) The question is whether the plaintiff presented evidence in opposition to the defendant's motion that, if believed by the trier of fact, is sufficient to support a judgment in the plaintiff's favor. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) Nonetheless, the court 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.'" (Taus, at p. 714; Wilson, at p. 821; Zamos, at p. 965.)
"`The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue.'" (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.) We review the trial court's rulings independently under a de novo standard of review. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325; Rusheen v. Cohen, supra, 37 Cal.4th at p. 1055.)
In Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, the Supreme Court held a moving party relying on section 425.16, subdivision (e)(1) and (2), need establish only that the challenged statement was made within or in connection with an official proceeding whether or not it pertained to an issue of public significance: "[P]lainly read, section 425.16 encompasses any cause of action against a person arising from any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body." (Briggs, at p. 1113; see id. at p. 1123 ["a defendant moving to strike a cause of action arising from a statement made before, or in connection with an issue under consideration by, a legally authorized official proceeding [under subdivision (e)(1) and (2)] need not separately demonstrate that the statement concerned an issue of public significance"].) The Supreme Court explained, quoting from the Court of Appeal decision in Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1047, "`Under the plain terms of the statute it is the context or setting itself that makes the issue a public issue: 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.'" (Briggs, at p. 1116.) However, a defendant seeking to strike a cause of action that arises from protected conduct described in subdivision (e)(3) and (4), as here, must demonstrate the matter concerns a public issue or an issue of public interest. (Briggs, at pp. 1117-1118.)
Section 425.16 does not define "public issue" or "issue of public interest," and "it is doubtful an all-encompassing definition could be provided." (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132.) "Public interest within the meaning of the anti-SLAPP statute has been broadly defined to include, in addition to government matters, `"private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a government entity."'" (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468.) For example, our colleagues in Division Three of this court held the fact Marlon Brando had named his retired housekeeper as a beneficiary in his living trust was an issue of public interest within the meaning of section 425.16, subdivision (e)(3) and (4), explaining "A statement or other conduct is `in connection with an issue of public interest' . . . if the statement or conduct concerns a topic of widespread public interest and contributes in some manner to a public discussion of the topic." (Hall v. Time Warner Inc (2007) 153 Cal.App.4th 1337, 1347; see also DuCharme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 [matter may be of "public interest" for purposes of the statute even if the interest is not general but is limited to a "definable portion of the public"; in such circumstances, however, the statement must relate to an "ongoing controversy" such that it warrants protection by a statute that embodies encouragement of participation in matters of public significance]; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 [statement about supervision of a staff of eight custodians did not concern an issue of public interest; to establish "public issues" or "issues of public interest" within the meaning of the anti-SLAPP statute, it must be demonstrated (1) the challenged statements concerned a person or entity in the public eye or a topic of widespread public interest or (2) the protected conduct directly affected a large number of people beyond the direct participants].)
Regardless of the extent to which Pruneyard, supra, 23 Cal.3d 899 may apply to the El Camino Shopping Center—that is, whether or not it is a public forum under the First Amendment or section 425.16, subdivision (e)(3), for some purposes—and even if gathering in a public forum for a car show is constitutionally protected activity,
Village Coffee Roaster, Berman and Troyan attempt to remedy this deficiency in their motion by referring to evidence submitted in the trial court showing that Regency's lawsuit and the conduct of its process servers and security guards after the action was filed were the subject of widespread comment and criticism in newspapers and radio programs and on the Internet. Any issue in which the public takes such an interest, they argue, even if not otherwise of public importance or significance, is of "public interest." (See Nygård, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th at p. 1042; see also Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807-808 [contestant's appearance on television show Who Wants To Marry A Millionaire matter of public interest].)
It may well be that Regency's decision to file a trespass and nuisance action against the car show promoters and participants, together with what has been described as its overly aggressive efforts to protect its rights as a private property owner through the use of hostile process servers and armed secured guards, qualify as an issue of public interest within the meaning of section 425.16. However, the pending lawsuit does not concern those activities. Rather, it is based on Village Coffee Roaster, Berman and Troyan's alleged promotion or encouragement of car shows at the shopping center. That is simply not conduct "in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e)(4).)
The order denying the section 425.16 special motion to strike is affirmed. Regency is to recover its costs on appeal.
We concur:
ZELON, J.
JACKSON, J.
