McDONALD, J. —
Plaintiff Trilogy at Glen Ivy Maintenance Association (Association) and various homeowners (together plaintiffs) filed this action against defendant Shea Homes, Inc., and others (together Shea) alleging, essentially, that Shea improperly diverted revenues from a contract that should have been paid to Association. After Shea sought and obtained judgment on the pleadings, plaintiffs filed an amended complaint, and Shea responded by moving to dismiss the amended complaint pursuant to Code of Civil Procedure
Shea developed and built a master planned community (the Trilogy
In August 2001, when Shea was still the sole owner of the land (the Property) on which the Trilogy Project was ultimately built, Shea entered into a contract (the Contract) with AT&T Broadband (AT&T) to facilitate the provision of broadband communication services to the residences and businesses within the Trilogy Project. Under the Contract, Shea agreed to construct (and to grant AT&T a license to use) a conduit/duct system on the property to install and maintain AT&T's cables and communications equipment, and granted AT&T an easement over the Property to install and maintain the equipment. In consideration for these and other covenants by Shea, AT&T agreed to pay Shea the amounts specified in the Contract.
The recorded covenants, conditions and restrictions (CC&R's) governing the Trilogy Project provided that the board of directors for Association (the Board) had the power to enter into exclusive telecommunications contracts. Shea and its representatives served on and controlled the Board at the time the Contract was entered into between Shea and AT&T, and Shea remained in control of the Board until mid-2006. During this period, Shea and its representatives owed fiduciary obligations to Association.
Shea did not disclose, and plaintiffs did not know of, the Contract or the payments Shea was to receive under the Contract until the spring of 2010. At that time, Association's manager opened a letter addressed to "Trilogy at Glen Ivy." The envelope contained a check from Time Warner Cable (AT&T's successor in interest under the contract) in the amount of $175,000 made payable to Shea, and a cover letter that stated the check was for the payment owed under the Contract. After receiving two more checks for amounts due under the Contract, both of which were also made payable to Shea, Association contacted Time Warner Cable and asked that the checks be reissued in Association's name because it was Shea's transferee. Time Warner Cable ultimately placed stop payment orders on the checks and declined to make further payments until Shea and Association resolved the conflict over who was entitled to the payments. Association corresponded with Shea and asserted it was entitled to the payments. Shea did not respond and Association filed the present action.
Association filed the present action alleging several common counts premised on the contention that, because the Contract's benefits and obligations constituted an agreement that ran with the Property and Association was the successor in interest to Shea's interest in the Property, Association was entitled to the amounts received and to be received under the Contract. Shea moved for judgment on the pleadings arguing that, because Association was not a party to the Contract, nor as a matter of law did the Contract constitute an agreement running with the land, Association had no rights in the contract to be enforced and the complaint should be dismissed. Association opposed the motion, asserting the complaint adequately stated facts under various theories that supported the common counts. Association alternatively argued that, even were the court to grant the motion, it should provide Association leave to amend because, in addition to providing plaintiffs an opportunity to more fully articulate the theories supporting their common counts, plaintiffs could state a claim for breach of fiduciary duty against Shea under Raven's Cove Townhomes, Inc. v. Knuppe Development Co. (1981) 114 Cal.App.3d 783 [171 Cal.Rptr. 334]. Plaintiffs noted that Shea, when it controlled the Board, was subject to fiduciary obligations under the Raven's Cove court's rationale and holding that, because undivided loyalty is one of those duties, "a developer and his agents and employees who also serve as directors of an association, like the instant one, may not make decisions for the Association that benefit their own interests at the expense of the association and its members...." (Id. at p. 799.) Plaintiffs asserted a claim could be based on the allegations that Shea, by entering into an undisclosed contract with a vendor that was solely for Shea's benefit at the time it controlled the Board and that obligated Association, had breached its fiduciary duties.
The court granted judgment on the pleadings, but also granted plaintiffs leave to amend the complaint. Plaintiffs' FAC, the subject of the present anti-SLAPP motion, alleged the same common counts but added claims for breach of fiduciary duties, unfair business practices, breach of the implied covenant of good faith and fair dealing, and for declaratory relief. The FAC alleged Shea and its agents were the original directors and retained control over Association until mid-2006 and, "[a]s such, [Shea] owed fiduciary duties of utmost loyalty, trust, confidence and good faith to [Association]," and alleged Shea breached its fiduciary duty to Association by (1) not disclosing the existence of the Contract, (2) not causing the Contract to be recorded as a covenant running with the land, (3) not disclosing its self-interest in the Contract under which it received compensation, (4) "[r]epudiating the automatic transfer of [the Contract] to [Association] pursuant to Section 2.11 of
Shea, focusing and seizing on the italicized word "repudiating," filed the instant anti-SLAPP motion attacking the FAC. Shea's motion argued the first prong under the anti-SLAPP statute was satisfied because a core component of the breach of fiduciary duty claim, and indeed the raison d'être for the amendment, was that Shea had made the claim (in its motion for judgment on the pleadings) the CC&R's entitled Shea permanently to control and profit from telecommunications services, and it was this claim that necessarily formed the basis for plaintiffs' allegation that Shea had "repudiated" its obligations to plaintiffs. From this predicate, Shea argued protected conduct — i.e., Shea's position in the current litigation — was an integral component of plaintiffs' claim for breach of fiduciary duties, because Shea's "repudiation" could only have been manifested by Shea's position in the current litigation, and Shea therefore asserted it had satisfied the first prong under the anti-SLAPP statute and thereby shifted to plaintiffs the burden of providing evidence demonstrating probable success on the merits.
Plaintiffs opposed the anti-SLAPP motion, asserting the complaint on its face showed the claims asserted were based on Shea's acts and omissions occurring years before litigation was even contemplated and therefore were not premised on litigation activities. Plaintiffs contended Shea's prelitigation actions made clear its position that it intended to retain the revenues from the Contract in violation of its fiduciary obligations, and the mere fact Shea reiterated its position during litigation did not mean a claim based on Shea's prelitigation repudiation became subject to the anti-SLAPP statute.
The court found Shea had not met its burden of showing the claims asserted in the FAC arose from protected activity as contemplated by the anti-SLAPP statute, and denied Shea's motion. This appeal followed.
The anti-SLAPP law involves a two-step process for determining whether a claim is subject to being stricken. In the first step, the defendant bringing an anti-SLAPP motion must make a prima facie showing that the plaintiff's suit is subject to section 425.16 by showing the plaintiff's claims arise from conduct by the defendant taken in furtherance of the defendant's constitutional rights of petition, or free speech in connection with a public issue, as defined by the statute. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733 [3 Cal.Rptr.3d 636, 74 P.3d 737].) If the defendant does not demonstrate this initial "arising from" prong, the court should deny the anti-SLAPP motion and need not address the second step. (See City of Riverside v. Stansbury (2007) 155 Cal.App.4th 1582, 1594 [66 Cal.Rptr.3d 862]; Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 811 [63 Cal.Rptr.3d 575].)
If the defendant satisfies the first step, the burden shifts to the plaintiff to demonstrate there is a reasonably probability it will prevail on the merits at trial. (§ 425.16, subd. (b)(1).) In this phase, the plaintiff must show both that his or her claim is legally sufficient and there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823 [33 Cal.Rptr.2d 446], disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 358 [42 Cal.Rptr.2d 464].) In making this assessment, the court must consider both the legal sufficiency of and evidentiary support for the pleaded claims. (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398-399 [13 Cal.Rptr.3d 353].) On appeal, we review de
Shea argues the court erred when it concluded the breach of fiduciary duty claim did not arise, at least in part, from protected conduct.
Second, Shea's argument — that the "repudiation" allegation necessarily rests on protected statements made during the instant litigation and therefore the anti-SLAPP law was triggered — hinges entirely on the fact the FAC chose to employ the term "repudiation" as one of the specifications of how Shea allegedly breached the fiduciary obligations it owed while in control of the Board, and Shea's gloss on the FAC that the term "repudiation" was used in
Moreover, even to the extent we might construe the FAC's description of Shea's "repudiated" obligation (i.e., the automatic transfer of the Contract to Association as required by the CC&R's) as pleading some form of violation of Shea's contractual obligations, the terminology of "repudiation" would still have no significance because the FAC alleged the time for performance had already passed. (See, e.g., Gold Min. & Water Co. v. Swinerton (1943) 23 Cal.2d 19, 29 [142 P.2d 22] ["By its very name an essential element of a true anticipatory breach of a contract is that the repudiation by the promisor occur before his performance is due under the contract."]; accord, Central Valley General Hospital v. Smith, supra, 162 Cal.App.4th at p. 514.) The fact Shea may have engaged in protected conduct when it reiterated its refusal at a later date does not convert a claim seeking recovery on a fully accrued cause of action for Shea's earlier alleged misfeasance into a claim "arising from" such later protected conduct. (See, e.g., Aguilar v. Goldstein (2012) 207 Cal.App.4th 1152, 1161-1162 [144 Cal.Rptr.3d 238] ["What the allegations of the complaint in this case ... make clear is that defendants' alleged liability arises from defendants' purported failure to provide information to the shareholders that would have revealed their alleged conflict of interest,
Shea contends this case is controlled by Navellier, supra, 29 Cal.4th 82, arguing Navellier held that when the repudiation of an obligation is communicated during litigation, a cause of action based on that repudiation is subject to the anti-SLAPP statute. Shea's contention is based on an overly broad reading of Navellier that, we conclude, demonstrates why Shea's effort to bring this case within Navellier's analysis is misplaced. In Navellier, the plaintiffs had sued the defendant (Sletten) in a federal court action alleging Sletten had breached a fiduciary duty by, among other things, terminating the plaintiffs' contract to provide investment advisory services. A few months after the plaintiffs filed the federal action, Sletten entered into an agreement with the plaintiffs that effectively rehired the plaintiffs as investment advisers and, as part of that agreement, signed a general release that released all claims against the plaintiffs except for indemnity and contribution (id. at pp. 85-86), but the underlying federal action by the plaintiffs was not dismissed as part of the agreement. Instead, the plaintiffs filed an amended complaint, and Sletten responded by alleging a number of counterclaims that included two claims the federal court (after rejecting Sletten's argument that the release was voidable as unconscionable and as the product of economic coercion) held were barred by the general release. (Id. at pp. 86-87.) The plaintiffs then filed the state court action against Sletten asserting claims for breach of contract (asserting he breached the release by filing the federal counterclaims) and fraud (alleging he had misrepresented his intention to be bound by the release), and Sletten then filed the anti-SLAPP motion seeking dismissal of the plaintiffs' state court action. (Id. at p. 87.)
The Navellier court found the first prong of the anti-SLAPP statute was satisfied because the plaintiffs' claims for breach of contract and fraud "arose from" protected activities, reasoning:
The decision in Navellier concluded the anti-SLAPP statute applied because the genesis of the underlying obligation was in furtherance of litigation activities (the negotiation and execution of a release of litigated claims) and the alleged breach was premised exclusively on actions taken in furtherance of litigation activities because, "but for the federal lawsuit and Sletten's alleged actions taken in connection with that litigation, plaintiffs' present claims would have no basis." (Navellier, supra, 29 Cal.4th at p. 90.) In contrast, here the genesis of the underlying obligation sued on by plaintiffs was the fiduciary obligations that arose and were allegedly breached before any litigation activities were undertaken (see Moore v. Shaw (2004) 116 Cal.App.4th 182, 197 [10 Cal.Rptr.3d 154] [anti-SLAPP statute inapplicable where alleged misconduct occurred years before litigation initiated]), rendering Navellier inapposite.
Because Shea has not carried its burden of showing the claims asserted by plaintiffs arose from protected activity, we need not and do not reach the secondary inquiry of whether plaintiffs satisfied the burden of showing probable success on the merits. (Moore v. Shaw, supra, 116 Cal.App.4th at
We conclude the trial court correctly found Shea had not satisfied its initial burden of showing plaintiffs' claims arose from protected activity and therefore correctly denied Shea's motion to strike the complaint under the anti-SLAPP law.
The order is affirmed. Plaintiffs are entitled to costs on appeal.
Nares, Acting P. J., and Haller, J., concurred.
