BEDSWORTH, J.
Rocky Gentner has appealed from an order striking three causes of action from his cross-complaint against respondents Brian Kyle, Bobbie Griffith, and Cindy Atkinson under Code of Civil Procedure section 425.16, the anti-SLAPP statute.
As it turned out, the City lost its redevelopment agency funds, and its planning commission recommended permits for 32 lots instead of 48. At a meeting with City representatives in June 2011, the Bay City member in attendance was told, in no uncertain terms, that unless the company waived the $1.1 million payment, the City would not approve permits for the proposed residential development. Faced with this choice, the Bay City members signed a modification of the prior settlement agreement with the City, deleting the $1.1 million payment.
Gentner then sued respondents, alleging that the Bay City members met with the City at a "secret meeting," of which he had no notice, and that by meeting in secret, respondents breached several duties to him when they orally committed Bay City to agree to the waiver and the reduced number of lots without his approval. Respondents filed an anti-SLAPP motion against the three causes of action based on breach. The trial court granted the motion, and Gentner has appealed.
We affirm the trial court's order striking the three causes of action. Respondents established that the causes of action arose from protected activity, and Gentner did not carry his burden to show a probability of prevailing on any of them.
Bay City is a limited liability company formed in 2000 by Kyle, Griffith, Gentner, James Parkhurst, and Thomas Atkinson. All of the members were managing members. Bay City's sole asset was a 10-acre parcel of undeveloped beachfront property in Seal Beach, the last such parcel in the city. When Bay City acquired it in 2003, the property was zoned for commercial use; the company began the process of getting the property rezoned for residences. Among other things, Bay City proposed to subdivide the property into 48 residential lots.
Thomas Atkinson died in 2006, and since that time, the Bay City members have disagreed about the status of his widow, Cindy Atkinson (Atkinson). Kyle, Griffith, and Atkinson herself asserted that she succeeded to her husband's membership, with full voting rights. Gentner and James Parkhurst contended that she has only an economic interest in the company, but cannot vote.
In 2009, the City filed an eminent domain action against Bay City in order to acquire part of the property for an access road and sewer maintenance area. Bay City then sued the City for CEQA violations. Both actions settled in March 2011, with all members of Bay City except Gentner signing the settlement agreement.
The settlement agreement provided, among other things, that if the City approved the project and the California Coastal Commission issued the necessary coastal development permit, the City would pay Bay City $1.1 million in exchange for a portion of the property to be used for open space. The City also agreed to use its best efforts to get planning commission approval of the 48-lot residential development, although there were no guaranties.
On June 6, 2012, the City's planning commission issued its recommendation to the city council for the Bay City project: 32 lots, not 48. On June 11, three Bay City members, along with two other company representatives, met with two members of the city council and other City staff members to discuss the implications of the planning commission recommendation, particularly in light of the "best efforts" provision of the settlement agreement. Gentner and Atkinson did not attend the meeting. The June 11 meeting resulted in two options for Bay City, either of which the two council members undertook to support when the project came up for approval before the whole council.
On June 20, the Bay City members received an e-mail notifying them that the City wanted to get out of paying the $1.1 million agreed to in the settlement agreement, because it no longer had the redevelopment agency funds to make the payment. On June 22, Kyle attended a meeting with the same two council members who had met with Bay City on June 11. This time the council members stated unequivocally that unless Bay City waived the $1.1 million payment, they would not vote to approve the project. If Bay City waived the payment, the council members would vote for it and would line up some environmental groups to support the project with the Coastal Commission.
The next day, Bay City's project manager reported to all members by e-mail about meeting on June 22. In the e-mail, he stated, "Since Jim [Parkhurst] and Bob [Griffith] are out of town at this critical point in the project [and] Jim is virtually unreachable it was not possible to agree to anything yesterday." He further outlined the plans for the next several weeks: "1. Monday June 25th — City Council to approve project as presented. [Council member] Ellery will add a condition that project approval to be conditioned on waiving the $1.1m[illion payment]. We neither agree or object to this condition. [¶] 2. Wednesday June 27th — [Bay City members] to meet and decide three [sic] on issues raised above. I have invited Dennis O'Neil to join us. Bob [Griffith] will have to call in to participate by telephone. [¶] 3. Thursday June 28th to July 5th — Revision to Settlement Agreement (now in the form of a DDA (Disposition and Development Agreement)) is drafted if [Bay City] agrees to 1 and 2 above.
The e-mail also spelled out to the members the consequences of their decision at the June 27 meeting. "a. If [Bay City] agrees to 1 and 2 above Second reading and DDA approval will be done. [¶] b. If [Bay City] does not agree to 1 and 2 above: [¶] i. Council will deny project and we go back to step one. [¶] ii. Council will continue project for further discussion/negotiation. [¶] c. If continued, as a practical matter, nothing will happen until after Labor Day as [two council members] are on vacation during August." Thus the issue for the June 27 meeting of the members boiled down to "whether not waiving the $1.1m[illion payment] is worth jeopardizing project approval or losing our momentum." On June 25, 2012, at a public meeting, the city council voted to approve the Bay City project with 32 lots, with the vote for final approval on July 9.
The Bay City members met on June 27, at which time the project manager drove home the message in the June 23 e-mail: if they did not agree to waive the $1.1 million payment, the city council would not approve the project.
On July 9, 2012, the city council voted to approve the zoning change, the general plan amendment, the tentative tract map (for 32 lots), and the DDA, with approval of the zoning change conditioned on Bay City's execution of the DDA.
In March 2013, Gentner cross-complained against Kyle, Griffith, and Atkinson for breach of the Bay City operating agreement, for breach of fiduciary duty, for declaratory relief, and for negligence. The centerpiece of the cross-complaint was an allegedly secret meeting with City representatives in June 2012 at which respondents orally committed Bay Cities to agree to waive the $1.1 million payment and to reduce the number of residential lots from 48 to 32, without notice to Gentner or his approval. Gentner's cross-complaint did not specify the date of the meeting and alleged that only one council member attended it. He alleged the secret oral agreement was later reduced to a writing (the DDA), which he signed under duress and protest.
Respondents moved the court to strike the three breach causes of action under the anti-SLAPP statute. The trial court granted the motion, striking all causes of action from the cross-complaint except for declaratory relief. The trial court found that the causes of action arose from protected activity — an issue under review by the city council — and that Gentner had not presented sufficient evidence to meet his burden on the probability of his prevailing. Among the deficiencies in this department, the trial court cited the lack of evidence of damages resulting from the allegedly wrongful conduct.
The California Legislature enacted the anti-SLAPP statute to counteract "a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a).) The Legislature created a special motion to strike, filed at the outset of litigation, to nip these suits in the bud, before defendants incurred crippling attorney fees and other expenses. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 65.) A court may order a cause of action "arising from any act . . . in furtherance of the . . . right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue" to be stricken by means of this special motion. (§ 425.16, subd. (b)(1).) We review the order granting or denying an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
The trial court uses a two-part test to evaluate an anti-SLAPP motion. First, the court determines whether the complaint or cause of action is "one arising from protected activity." (Navellier v. Sletten, supra, 29 Cal.4th at p. 88.) As our Supreme Court has emphasized, "[T]he critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity." (Id. at p. 89.) The Legislature has exhorted the courts to construe the anti-SLAPP statute "broadly." (§ 425.16, subd. (a).)
The defendant bears the burden of showing that the cause of action arises from protected activity. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) If the defendant makes that showing, the court then proceeds to the second part of the inquiry: whether it is probable that the plaintiff will prevail on the claim. The plaintiff need not prove its claim, but it must produce enough evidence to establish a prima facie case. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)
"`In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; 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. [Citation.]' [Citations.] [¶] . . . [A]lthough by its terms section 425.16, subdivision (b)(1) calls upon a court to determine whether `the plaintiff has established that there is a probability that the plaintiff will prevail on the claim' (italics added), past cases interpreting this provision establish that the Legislature did not intend that a court . . . would weigh conflicting evidence to determine whether it is more probable than not that plaintiff will prevail on the claim, but rather intended to establish a summary-judgment-like procedure. . . ." (Taus v. Loftus (2007) 40 Cal.4th 683, 714.)
Respondents' anti-SLAPP motion was made under section 425.16, subdivision (e), which defines "an act in furtherance of a person's right of petition or free speech . . . in connection with a public issue" to include "(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 . . ." Although Gentner disputed the issue in his opposition to the motion, and disputes it on appeal as well, it is apparent from the record that he is suing respondents for statements made in connection with issues under consideration by the City, that is, securing the City's approval of the Bay City real estate project and modifying the settlement agreement as a condition of that approval.
Genter alleged three causes of action against respondents: breach of contract, breach of fiduciary duty, and negligence. A cause of action for breach of contract requires a plaintiff to plead and prove the existence of a contract, plaintiff's performance or an excuse for non-performance, defendant's breach, and proximately caused damages. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) The elements of a cause of action for breach of fiduciary duty are the existence of the duty, a breach, and resulting damage. (Pelligrini v. Weiss (2008) 165 Cal.App.4th 515, 524.) A negligence cause of action requires pleading and proof of a duty of due care, a breach of that duty, and proximately caused injury. (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335.) All three causes of action require proof of proximately caused damages.
Gentner's emphasis on the secrecy of the alleged meeting between respondents and the City is something of a red herring. Secrecy matters — that is, caused damages — only if things would have been different had there been no secrecy. Gentner presented no evidence that his presence at any meeting with the City would have made the slightest difference in the outcome. Therefore he was not damaged by the mere fact a meeting was held without notice to him, even if it actually was.
If Gentner was damaged, it was because the City renegotiated its promise to pay Bay City $1.1 million and, possibly, because the number of lots in the proposed development was reduced from 48 to 32.
As to the number of lots, the 2011 settlement agreement did not guarantee that Bay City would receive permits for all 48. In fact, it expressly stated the City could not guarantee approval of the entire project as proposed. Genter presented no evidence that the number of lots was reduced because of an agreement, secret or otherwise, with anyone from Bay City.
As for waiving the $1.1 million payment, the City held all the cards. If respondents did not agree, the City would not approve development of the property.
Genter cannot prevail on any cause of action based on entering into the waiver agreement itself, because, as he has admitted, the members voted to authorize the waiver at a duly called membership meeting on June 27, which he attended. Even if Gentner's agreement was coerced and should be disregarded, the majority of the members present at the June 27 meeting approved the waiver; according to the operating agreement, "the act of a majority of Members present at any meeting at which there is a quorum . . . shall be the act of the Members."
The order granting the anti-SLAPP motion and striking the three causes of action from the cross-complaint is affirmed. Respondents are to recover their costs on appeal.
RYLAARSDAM, ACTING P. J. and MOORE, J., concurs.
