Committee for Safety of Foreign Exchange Students
Advocating for the health, safety and welfare of all exchange students
Grijalva v. Brandt
Filed 7/20/09 Grijalva v. Brandt CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not
been certified for publication or ordered published for purposes of rule
8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
DANIELLE GRIJALVA et al.,
Plaintiffs and Appellants,
v.
HELGA BRANDT et al.,
Defendants and Respondents.
D053856
(Super. Ct. No. 37-2008-00052285-
CU-DF-NC)
APPEAL from an order of the
I.
INTRODUCTION
In March 2008, Grijalva and CSFES[1]filed this action
against ASSE International, Inc. (ASSE), Helga Brandt, and Josef Motycka.
According to plaintiffs' amended complaint, Grijalva founded CSFES, a Web site
and agency that advocates for the safety and welfare of foreign exchange
students visiting the
ASSE and Brandt filed a joint special motion to strike
plaintiffs' amended complaint pursuant to the anti-SLAPP statute (Code Civ.
Proc., 425.16).[2] In order to prevail on an anti-SLAPP motion, a defendant
must demonstrate that the plaintiff's claims arise from "any act of [the
defendant] 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. . . ." ( 425.16, subd. (b)(1).) The statute provides that any
written or oral statement or writing made by the defendant in a judicial
proceeding or made by the defendant in connection with an issue under
consideration or review by a judicial body constitutes such an act. ( 425.16,
subd. (e)(1) and (2).)
In their anti-SLAPP motion, ASSE and Brandt claimed that
plaintiffs' action was within the scope of the anti-SLAPP statute because it
"appear[ed]" to relate to ASSE's participation in a separate judicial
proceeding in
On appeal, plaintiffs claim that the trial court erred in
granting the anti-SLAPP motion. Plaintiffs contend that the trial court erred
in concluding that ASSE and Brandt had satisfied their threshold burden of
demonstrating that plaintiffs' claims arose from ASSE and Brandt's
participation in the
II.
FACTUAL AND PROCEDURAL BACKGROUND
On March 11, 2008, plaintiffs filed a complaint against
ASSE, Brandt, and Motycka. In their complaint, plaintiffs alleged:
"Defendant [ASSE] has brought students to the
Plaintiffs further alleged that "CSFES and . . .
Grijalva seek to empower students, parents, and workers who are concerned about
the students' welfare and who share the goal of having the agencies live up to
their responsibilities regarding the safety and welfare of the students."
The only allegations in the complaint regarding specific
wrongful actions allegedly taken by the defendants were the following:
"Defendant ASSE in response to the attention generated
on [sic] the problems it created, set out to malign CSFES and . . . Grijalva
with an intentional and false campaign directed to the parents of the students
and to citizens with concerns regarding the problems caused by . . . ASSE's
misconduct.
"Defendants falsely accused [Grijalva] of the
following:
"a. conducting her website and agency with a
'commercial purpose'
"b. 'manipulating facts'
"c. 'not portraying a clear picture'
"d. 'isn't interested in the welfare of the students'
"e. 'threatening' to send information on exchange
agencies but 'if got [sic] a contribution doesn't send anything,'
"f. 'represent[ing] herself as a federal agent,'
"g. 'performs background checks,'
"h. [b]eing a 'liar,'
"i. [m]aking 'false statements'[.]"
In a defamation cause of action, plaintiffs alleged,
"Defendants made the foregoing statements with the intent to convey false
and defamatory meanings of and concerning . . . Grijalva and CSFES."
Plaintiffs also brought an unfair business practices claim against defendants
in which they incorporated all of the other allegations of the complaint and
alleged that this "conduct of the defendants and each of them involve
practices that were dishonest, deceptive, in disregard of the rights of the
students and in disregard of the agency's obligations under the contract by which
the students and their families entered the program."
On the same day that plaintiffs filed their complaint, they
filed a notice of related case. In their notice, plaintiffs stated:
"Programmes Internationaux D'Exchanges [(PIE)] sued
[Veronica Beddick and Grijalva] in
On March 24, the plaintiffs filed an amended complaint that
was identical in all material respects to their original complaint.[4]
On April 24, ASSE and Brandt filed an anti-SLAPP motion. In
their motion, ASSE and Brandt claimed that plaintiffs' action arose from ASSE's
participation in a separate judicial proceeding involving Grijalva. ASSE and
Brandt explained that in September 2007, PIE sued Grijalva in
ASSE and Brandt further stated that in February 2008, ASSE
moved to intervene in the
"A mere one month after ASSE moved to intervene,
Plaintiffs filed this meritless suit seeking unsubstantiated damages and
alleging that at some unspecified time, at an unspecified location and to
unspecified persons, Defendants made 'statements' which Plaintiffs allege are
defamatory and constitute unfair business practices. . . .
"This lawsuit is just a continuation of Plaintiffs'
crusade to harass Defendants . . . . Plaintiffs seek to punish Defendants for
ASSE's participation in the judicial proceedings in
"Because plaintiffs have not sufficiently alleged
Defendants' allegedly 'defamatory statements' in the instant action, the exact
origin of and circumstances surrounding the alleged statements are currently
unknown. However, the allegedly defamatory statements appear to directly relate
to ASSE's participation in the
ASSE and Brandt also argued that plaintiffs could not
establish a probability of prevailing on either of their two causes of action.
ASSE and Brandt requested that the court take judicial
notice of various documents from the North Carolina action, including PIE's
complaint and motion for a preliminary injunction, the preliminary injunction
entered in favor of PIE, ASSE's motion to intervene, ASSE's motion for a
preliminary injunction, and the affidavits of two ASSE employees filed by ASSE
in support of its motion for a preliminary injunction.
Also on or about April 24, ASSE and Brandt filed a demurrer
to plaintiffs' amended complaint.[5] In their demurrer, ASSE and Brandt claimed
that plaintiffs' defamation and unfair business practices claims failed as
matter of law because they were based on communications related to the
On July 16, ASSE and Brandt filed and served notices in
which they stated that they had not received an opposition to either their
anti-SLAPP motion or their demurrer.
On July 21, Grijalva's attorney filed an ex-parte application
requesting that the trial court accept a late filed opposition to ASSE and
Brandt's anti-SLAPP motion, or, in the alternative, that the court continue the
hearing on defendants' anti-SLAPP motion. In the application, Grijalva's
attorney also requested leave to file a second amended complaint in response to
the pending demurrer. Grijalva's attorney filed the late opposition to
defendants' anti-SLAPP motion and an accompanying declaration from Grijalva, as
well as a second amended complaint, with the application. Grijalva's attorney
also filed a declaration in which he stated that his failure to timely file the
opposition "was due to personal difficulties I encountered and was not the
fault of the client."
On July 22, ASSE and Brandt filed an opposition to the ex
parte application. ASSE and Brandt noted that, while ordinarily an anti-SLAPP
motion must be heard by the trial court within 30 days of the filing of the
motion ( 425.16, subd. (f)), in this case, plaintiffs had already had more than
three months to file an opposition, due to the condition of the trial court's
docket. ASSE and Brandt also argued that plaintiffs had not demonstrated
sufficient grounds for relief from their failure to timely file an opposition.
ASSE and Brandt supported their opposition with a declaration from one of their
attorneys.
On July 24, the trial court denied Grijalva's application to
file the late opposition to the anti-SLAPP motion. The court noted that the
hearing on the anti-SLAPP motion was scheduled for the following day, and that
to allow the filing of the opposition would be unfair to ASSE and Brandt since
they would not have sufficient time to file a reply. The court also stated that
it could not continue the hearing because the court was obligated to hear the
motion within 30 days of the filing unless its docket would not permit
consideration of the motion within that time period.[6] The trial court also
denied Grijalva's attempt to file a second amended complaint, noting that such
action could not properly be accomplished by way of an ex parte application,
absent a stipulation.
The following day, the trial court confirmed its tentative
ruling granting ASSE and Brandt's anti-SLAPP motion. The court concluded that
ASSE and Brandt had demonstrated that the actionable conduct pled in the
amended complaint arose out of "statement[s]. . . made before . . . [a]
judicial proceeding," and "in connection with an issue under
consideration or review by . . . [a] judicial body," quoting section
425.16, subdivision (e)(1) and (2). The court reasoned:
"Defendants have sufficiently shown that . . . at least
part of the first and second causes of action arise out of statements made by
Defendants in the complaint-in-intervention in the
The trial court also noted that in light of ASSE and Brandt
having met their burden to demonstrate that the plaintiffs' claims were within
the scope of section 425.16, subdivision (e)(1) and (2), the plaintiffs were
required to demonstrate a probability of prevailing on their claims. The court
concluded that plaintiffs failed to carry this burden, since they had not submitted
an opposition to the anti-SLAPP motion. The court granted the anti-SLAPP
motion, and stated that ASSE and Brandt's demurrer was moot in light of the
court's ruling on the anti-SLAPP motion.
The trial court entered a formal order granting ASSE and Brandt's
anti-SLAPP motion on August 8. Grijalva timely appeals from that order.[7]
III.
DISCUSSION
The trial court erred in granting ASSE and Brandt's
anti-SLAPP motion
Plaintiffs claim that the trial court erred in granting ASSE
and Brandt's anti-SLAPP motion. Specifically, plaintiffs claim that the trial
court erred in determining that ASSE and Brandt had carried their burden of
demonstrating that plaintiffs' claims arose from ASSE and Brandt's
participation in the North Carolina proceeding and that the claims were
therefore within the scope of section 425.16, subdivision (e)(1) and (2). We
review de novo the trial court's determination that the plaintiffs' claims
arose from ASSE and Brandt's protected activity. (Tutor-Saliba Corp. v. Herrera
(2006) 136 Cal.App.4th 604 (Tutor Saliba Corp.).)
A. Governing Law
1. General principles of law governing anti-SLAPP motions
Section 425.16, provides in relevant part:
"(a) The Legislature finds and declares that there has
been 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. The Legislature finds and declares that it is in the
public interest to encourage continued participation in matters of public
significance, and that this participation should not be chilled through abuse
of the judicial process. To this end, this section shall be construed broadly.
"(b)(1) 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.
"(2) In making its determination, the court shall
consider the pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.
"[] . . . []
"(e) As used in this section, 'act in furtherance of a
person's right of petition or free speech under the United States or California
Constitution in connection with a public issue' includes: (1) any written or
oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law; (2) any written
or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law; (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; (4) or 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]
In Tutor-Saliba Corp., supra, 136 Cal.App.4th at page 609,
the court outlined the burdens of proof applicable to an anti-SLAPP motion:
" 'Under the statute, the court makes a two-step
determination: "First, the court decides whether the defendant has made a
threshold showing that the challenged cause of action is one arising from
protected activity. [Citation.] 'A defendant meets this burden by demonstrating
that the act underlying the plaintiff's cause fits one of the categories
spelled out in section 425.16, subdivision (e)' [Citation.] If the court finds
that such a showing has been made, it must then determine whether the plaintiff
has demonstrated a probability of prevailing on the claim. [Citation.]"
[Citations.] "Only a cause of action that satisfies both prongs of the
anti-SLAPP statute - i.e., that arises from protected speech or petitioning and
lacks even minimal merit - is a SLAPP, subject to being stricken under the
statute." [Citation.]' "
"[I]t is the principal thrust or gravamen of the
plaintiff's cause of action that determines whether the anti-SLAPP statute
applies [citation], and when the allegations referring to arguably protected
activity are only incidental to a cause of action based essentially on
nonprotected activity, collateral allusions to protected activity should not
subject the cause of action to the anti-SLAPP statute." (
2. The "arising from" requirement in section
425.16, subdivision (b)(1)
In City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76
(Cotati), the Supreme Court interpreted the requirement in section 425.16,
subdivision (b)(1) that a defendant demonstrate that the plaintiff's action is
one "arising from" protected activity. In Cotati, a group of mobile
home park owners sued a municipality in federal court claiming that the
municipality's rent stabilization ordinance was unconstitutional. (Cotati,
supra, 29 Cal.4th at p. 72.) The municipality subsequently filed a declaratory
relief action in state court seeking a declaration that the ordinance was
constitutional. (Ibid.) The owners filed an anti-SLAPP motion in the state
court action (ibid.), arguing that the municipality's state action was within
the scope of the anti-SLAPP statute because it arose from the owners' action in
filing the federal lawsuit. (Id. at pp. 72-73.) The trial court granted the
anti-SLAPP motion, reasoning that that the municipality had filed its action
shortly after the owners filed the federal action, named only the owners as
defendants, and involved " 'the exact contention' " made by the
owners in the federal action. (Id. at p. 73.)
The Cotati court disagreed with the trial court's conclusion
that the state court action had "aris[en] from" protected activity.
(Cotati, supra, 29 Cal.4th at p. 76.) The court began by emphasizing that the
timing of the City's filing did not demonstrate that the action arose from the
owners' filing of the federal action. (Id. at pp. 76-77.) The court stated,
"It is indisputably true, as the trial court observed, that City's action
was filed shortly after Owners filed their claim in federal court. But the mere
fact an action was filed after protected activity took place does not mean it
arose from that activity." (Ibid.) The Cotati court further explained that
to interpret " 'arising from' in section 425.16, subdivision (b)(1) as
meaning 'in response to,' as Owners have urged, would in effect render all cross-actions
potential SLAPP's. . . ." (Id. at p. 77.) The court rejected this
interpretation as both leading to an "absurd result" and being
inconsistent with the statutory scheme governing cross-complaints. (Ibid.)
The Cotati court further held that the "City's
subjective intent [in filing the action] is not relevant under the anti-SLAPP
statute." (Cotati, supra, 29 Cal.4th at p. 78.) "[A] claim filed in
response to, or in retaliation for, threatened or actual litigation is not
subject to the anti-SLAPP statute simply because it may be viewed as an
oppressive litigation tactic." (Ibid.) A trial court may not focus on a
plaintiffs' "litigation tactics," but rather, must determine, based
"on the substance of [plaintiff's] lawsuit," whether the defendant
has demonstrated that "an alleged SLAPP arise[s] from protected speech or
petitioning." (Id. at p. 78.) The Supreme Court summarized its holding by
stating, "[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." (Ibid.)
In applying this holding, the Supreme Court concluded that
the municipality's action arose from the underlying dispute between the
municipality and the owners that was at issue in both the federal and state
actions, rather than from the owners' exercise of their constitutional right to
file the federal action. (Cotati, supra, 29 Cal.4th at p. 80; see also id. at
p. 77.) The court observed, "
3. Statements made in a judicial proceeding or in connection
with an issue in a judicial proceeding are subject to the
anti-SLAPP statute
Pursuant to section 425.16, subdivision (e)(1) and (2),
"Statements, writings and pleadings in connection with civil litigation
are covered by the anti-SLAPP statute, and that statute does not require any
showing that the litigated matter concerns a matter of public interest."
(Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35; accord Gallanis-Politis v. Medina
(2007) 152 Cal.App.4th 600, 609 (Gallanis-Politis) [" ' "A cause of
action 'arising from' defendant's litigation activity may appropriately be the
subject of a section 425.16 motion to strike." . . . ' [Citation.]"].) Litigation
activity subject to an anti-SLAPP motion includes "communicative conduct
such as the filing, funding, and prosecution of a civil action." (Rusheen
v. Cohen (2006) 37 Cal.4th 1048, 1056.)
" ' "[J]ust as communications preparatory to or in
anticipation of the bringing of an action or other official proceeding are
within the protection of the litigation privilege of Civil Code section 47,
subdivision (b) [citation], . . . such statements are equally entitled to the
benefits of section 425.16." [Citations.]' [Citations.]"
(Gallanis-Politis, supra, 152 Cal.App.4th at p. 109.) Thus, an action for defamation
falls within the anti-SLAPP statute if the allegedly defamatory statement was
made in connection with litigation. (Healy v. Tuscany Hills Landscape &
Recreation Corp. (2006) 137 Cal.App.4th 1, 5.) However, "[t]he statute
does not accord anti-SLAPP protection to suits arising from any act having any
connection, however remote, with an official proceeding." (Paul v.
Friedman (2002) 95 Cal.App.4th 853, 866.)
B. Application
The primary arguments that ASSE and Brandt advanced in their
anti-SLAPP motion in the trial court in attempting to carry their threshold
burden of demonstrating that plaintiffs' claims arose from protected activity
are contrary to well established law. First, ASSE and Brandt claimed that the
" 'convenient' " timing of the filing of this action, a "mere
one month" after ASSE filed its complaint in intervention in the North
Carolina action, demonstrated that plaintiffs' lawsuit arose from ASSE's
participation in the North Carolina proceeding. However, as noted above, the
Supreme Court has clearly held that the fact that a party files an action after
protected activity has taken place does not demonstrate that the action arose
from the protected activity. (Cotati, supra, 29 Cal.4th at p. 69 [fact that
municipality's action was filed "shortly after" owners filed separate
action did not mean that municipality's action arose from owner's action].)
Second, ASSE and Brandt claimed that plaintiffs' action was
a "clearly-retaliatory lawsuit." Even assuming that plaintiffs filed
this lawsuit in retaliation for ASSE's participation in the
ASSE and Brandt made the related argument in the trial court
that, "The SLAPP character of Plaintiffs' action is . . . clear from the
obvious insufficiency of the causes of action." We are not aware of any
authority, and ASSE and Brandt have cited none, that indicates that the
insufficiency of the allegations in a plaintiff's complaint may be used to
demonstrate that the claims alleged therein arise from a defendant's protected
activity.[10] ASSE and Brandt apparently intend to suggest that that the
alleged insufficiency of the plaintiffs' amended complaint demonstrates that
plaintiffs' motive in filing the action was improper. (Cf. In re Marriage of
Gong and Kwong (2008) 163 Cal.App.4th 510, 516 [" ' "the total lack
of merit of an appeal is viewed as evidence that appellant must have intended
it only for delay" ' "]). However, as noted above, a plaintiff's
motive in filing an action is irrelevant for purposes of determining the merits
of an anti-SLAPP motion. (Cotati, supra, 29 Cal.4th at p. 77.)
Any alleged insufficiency in the plaintiffs' amended
complaint regarding the context in which the purported defamatory statements
were made would tend to negate, rather than support, the conclusion that ASSE
and Brandt demonstrated that the statements were made in a judicial proceeding
or in connection with an issue before a judicial body. ASSE and Brandt
implicitly acknowledged this in their anti-SLAPP motion when they stated,
"Because plaintiffs have not sufficiently alleged Defendants' allegedly
'defamatory statements' in the instant action, the exact origin of and circumstances
surrounding the alleged statements are currently unknown."
A defendant seeking to carry its burden of demonstrating
that a plaintiff's action arises from the defendant's participation in a
judicial proceeding does not carry this burden by demonstrating that the
statements that form the basis of the action were made under
"unknown" circumstances. Further, a defendant seeking to establish
that the plaintiffs' cause of action arises from protected activity is not
limited to the plaintiffs' pleadings. Rather, in seeking to carry this
threshold burden, a defendant may submit declarations attesting to the context
in which statements that form the basis of the plaintiff's claims were made.
(See, e.g., Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004)
122 Cal.App.4th 1049, 1057 [defendant submitted declarations of its attorney
and employee demonstrating that statements forming the basis of plaintiff's
complaint arose in connection with judicial proceeding]; 425.16, subd. (b)(2) [trial court shall
consider "supporting and opposing affidavits stating the facts upon which
the liability or defense is based," in ruling on anti-SLAPP motion].) In
this case, ASSE and Brandt provided no such declarations. Their assertion in
their anti-SLAPP motion that the statements forming the basis of plaintiffs'
claims "appear to directly relate to ASSE's participation in the
While ASSE and Brandt did request that the trial court take
judicial notice of various documents from the North Carolina proceeding, there
is no reference in the plaintiffs' amended complaint to the North Carolina
proceeding, and nothing in the complaint suggests that plaintiffs seek to hold
ASSE and Brandt liable for statements they made in any pleading in the North
Carolina action. On the contrary, rather than alleging that ASSE made the
statements in a judicial proceeding, plaintiffs' amended complaint suggests
that ASSE's statements were "directed to the parents of the students and
to citizens with concerns regarding the problems caused by . . . ASSE's
misconduct . . . ." (Italics added.)
Further, while plaintiffs' amended complaint alleges nine
defamatory statements,[11]ASSE and Brandt's anti-SLAPP motion fails to address,
in any fashion, eight of these statements. The only allegation from the
plaintiffs' amended complaint that ASSE and Brandt mention in their anti-SLAPP
motion is plaintiffs' allegation that the defendants had falsely accused
Grijalva of "making 'false statements.' " ASSE and Brandt argued in
their anti-SLAPP motion that this allegation arose from ASSE's allegation in
its complaint in intervention in the
Even assuming for the sake of argument that ASSE and Brandt
demonstrated that this single allegation is premised on a statement made in the
In sum, ASSE and Brandt did not demonstrate that the
defamatory statements alleged in plaintiffs' amended complaint were made in a
judicial proceeding or in connection with an issue under consideration or
review by a judicial body. ( 425.16, subd. (e)(1) and (2).) Accordingly, the
trial court erred in concluding that ASSE and Brandt carried their burden of
demonstrating that plaintiffs' action arose from petitioning activity that is protected
by the anti-SLAPP statute.[12]
IV.
DISPOSITION
The August 8, 2008 order is reversed. Grijalva is entitled
to costs on appeal.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.
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[1] "CSFES" is the name plaintiffs used in their
complaint to identify this party. Although CSFES appears to be an acronym,
plaintiffs did not provide the full name of the entity in their complaint. In
their complaint, plaintiffs alleged that both Brandt and Motycka were agents or
employees of ASSE. Motycka is not a party to this appeal.
[2] "SLAPP" stands for Strategic Lawsuit Against
Public Participation. (See Equilon Enterprises v. Consumer Cause, Inc. (2002)
29 Cal.4th 53, 57.) Unless otherwise specified, all subsequent statutory
references are to the Code of Civil Procedure.
[3] Plaintiffs also claim that the trial court abused its
discretion in refusing to allow them to file a late opposition to the
anti-SLAPP motion. In light of our reversal of the order granting the
anti-SLAPP motion, we need not consider this contention.
[4] The original complaint indicated that the case was a
"Limited Jurisdiction" case, i.e. one in which the amount in
controversy did not exceed $25,000 ( 85). The amended complaint prayed for a
judgment within the "unlimited jurisdictional limit" of the trial
court.
[5] Several of the pleadings contained in the record,
including the demurrer, do not bear a file stamp. We assume for sake of this
decision that the pleadings that do not bear a file stamp were filed on the
dates indicated in the documents.
[6] Implicit in the court's comment is that the court's
docket no longer precluded holding a hearing on the motion.
[7] In her notice of appeal, Grijalva refers to the
"judgment entered on August 8, 2008." (Italics added.) We construe
the notice of appeal as referring to the August 8, 2008 order granting the
anti-SLAPP motion. The order is appealable. ( 904.1, subd. (13).)
[8] ASSE and Brant did not argue in the trial court, and do
not argue on appeal, that either of the plaintiffs' causes of action arose from
statements or conduct defined in section 425.16, subdivision (e)(3) or (4).
Accordingly, we restrict our analysis to section 425.16, subdivision (e)(1) and
(2).
[9] ASSE and Brandt reiterate these arguments on appeal,
claiming that plaintiffs' filed this "retaliatory lawsuit" a
"mere thirty-two days after ASSE intervened in the
[10] We express no view in this opinion on the merits of
ASSE and Brandt's demurrer to the plaintiffs' amended complaint. As noted
previously, the trial court concluded that the demurrer was moot, in light of
its ruling granting the anti-SLAPP motion.
[11] The nine statements are quoted in full in part II,
ante.
[12] Although the trial court ruled that ASSE and Brandt
demonstrated that plaintiffs' amended complaint arose from "statements
made by Defendants in the complaint-in-intervention in the
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