Filed 11/14/19 Conteh v. Wymont Services Ltd. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ALIEU B. M. CONTEH et al.,

Plaintiffs and Respondents,

v.

WYMONT SERVICES LIMITED et al.,

Defendants and Appellants.

G057161

(Super. Ct. No. 30-2018-01006824)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed.

Bremer Whyte Brown & O’Meara, Nicole Whyte and Benjamin L. Price for Defendants and Appellants.

Genga & Associates, John M. Genga and Khurram A. Nizami for Plaintiffs and Respondents.

* * *

This is part of a long running dispute between plaintiffs Alieu B. M. Conteh and numerous entities (collectively plaintiffs or the Conteh entities), and defendants, Wymont Services Limited (Wymont) and Jonathan B. Sandler (collectively defendants or Wymont and Sandler), concerning the operation of African Wireless, Inc. (African Wireless). In this new litigation, plaintiffs alleged defendants breached their fiduciary duty and “governing corporate documents,” seeking damages and declaratory relief. Defendants brought a special motion to strike pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP statute), seeking to strike the complaint.

The trial court granted the motion in part and denied it in part. Defendants now appeal, arguing the trial court erred in failing to strike certain parts of the complaint, and alternatively, they argue the complaint as a whole arose from an “issue of public interest” under section 425.16, subdivision (e). We affirm the order, finding no error with respect to the portions of the complaint the trial court declined to strike. The defendants failed to meet their burden to demonstrate the complaint’s remaining allegations arose from protected activity. We also find no error in the court’s conclusion that no issue of public interest was raised.

I

FACTS

This case has a long and tangled history, which includes two prior opinions from this court. (Lindsey v. Conteh (2017) 9 Cal.App.5th 1296 (Lindsey I); Lindsey et al. v. Conteh et al. (Jan. 18, 2019, G054219) [nonpub. opn.] (Lindsey II).) For brevity’s sake, we provide only the facts critical to the particular issues in this appeal. A more complete background can be found in the prior opinions, particularly Lindsey I.

Very briefly, Conteh formed African Wireless in 1990 as a Delaware corporation. In 1997, he formed Congolese Wireless Network, SPRL (Congolese Wireless) under the laws of the Democratic Republic of the Congo (Congo). African Wireless was principally a holding company for a 60 percent interest in Congolese Wireless. (Lindsey I, supra, 9 Cal.App.5th at p. 1299.) The remainder of Congolese Wireless, in the time period relevant here, was held by a Congolese company called Resotel SARL (Resotel).

In 2001, needing capital, Congolese Wireless formed a joint venture with Vodacom International Limited (Vodacom International), which became known as Vodacom Congo. Congolese Wireless owned 49 percent of the joint venture and Vodacom International owned the rest.

As of 2014, approximately 70 percent of African Wireless’s shares were owned by Conteh and his closely held entity, Dominique Financial. (Lindsey I, supra, 9 Cal.App.5th at p. 1299.) Wymont is a minority owner in African Wireless and Sandler is its representative, holding a board seat until 2018. Other minority shareholders included James R. Lindsey (as trustee of a family trust), Marc Van Antro and William Johns (the minority shareholders).

In 2014, the minority shareholders filed a shareholder derivative action on behalf of African Wireless and against Conteh and various other entities allegedly tied to African Wireless (the Lindsey action). The minority shareholders alleged eight causes of action including breach of fiduciary duty and unjust enrichment. That case has a lengthy history, but ultimately, it resulted in terminating sanctions against the Conteh entities and a default judgment against them worth approximately $93 million. (Lindsey II, supra, G054219.) After a default prove-up hearing, the court ordered the creation of a constructive trust on behalf of African Wireless, and the Conteh entities were ordered to turn over certain shares and companies. The minority shareholders began collection attempts. The Conteh entities appealed, and we ultimately affirmed the judgment. (Lindsey II, supra, G054219.)

The Conteh entities allege that after the default judgment, Sandler and Wymont obtained an agreement from the other minority shareholders under which Wymont would pay legal expenses going forward in exchange for certain rights. The Conteh entities refer to this agreement as “the Minority Contract.”

While the appeal in Lindsey II was pending, the minority shareholders agreed to a conditional settlement in July 2017 that would bring all legal and collections activities to a halt while Sandler tried to sell Congolese Wireless or its interest in Vodacom Congo. Sandler was given “unfettered discretion” over the sale as long as it met certain minimum requirements. Sandler had 120 days to execute the sale, which, if successful, would result in a mutual general release. Otherwise, the Lindsey action and the minority shareholders’ collections would resume. The sale was not consummated and the conditional settlement agreement terminated.

In July 2018, the Conteh entities, in their individual capacities and as majority shareholders in African Wireless, sued Wymont for breach of fiduciary duty and breach of “governing corporate documents,” seeking damages and declaratory relief. The complaint alleged that Sandler and Wymont “[blew] up the settlement to get better deals for themselves.” (Capitalization omitted.) Among other theories, the complaint claimed that Sandler “failed deliberately” so he could try to amend the settlement to “(i) cap the [Conteh entities’] proceeds from, and lower the price at which they would have to agree to, a sale of [Congolese Wireless], so that Sandler and Wymont could pocket the excess; and (ii) cut ‘side deals’ or otherwise enrich himself or Wymont at the expense and to the detriment of all the rest of African Wireless’s shareholders . . . .” The complaint also alleged that Sandler had acted outside the conditional settlement to hold himself out to third parties that he had the authority to act for African Wireless.

Further, in addition to other acts, the complaint alleged that while Conteh had “sought to return [African Wireless] to some sense of corporate normalcy, . . . Wymont, however, through Sandler, has thwarted all efforts and discussion to such ends by, among other things, threatening legal action against shareholders to prevent them from voting even to retain an investment banker to value [African Wireless] or [Congolese Wireless] and later to negotiate for the sale of one or the other on terms subject to further shareholder agreement.”

Defendants filed a special motion to strike the complaint, arguing that plaintiffs’ claims arose from protected activity, specifically, their litigation of the Lindsey action and activities related to the conditional settlement. After briefing, the trial court issued a lengthy order granting the motion in part.

The court found the complaint alleged both unprotected and protected activities, discussing at some length the requirements for bringing an anti-SLAPP motion in such circumstances. (See Baral v. Schnitt (2016) 1 Cal.5th 376 (Baral).) The court noted the moving party bears the burden of identifying all allegations of protected activity, which moving defendants had not done. Nonetheless, the court decided to reach “matters made clear by the Motion papers.”

The court reviewed numerous paragraphs of the complaint and the causes of action based on the allegations therein, striking several of them and denying the motion to strike as to the rest, and we will discuss these in more detail below. The court also rejected defendants’ claim that all activity was protected as involving a public figure or issue.

Defendants now appeal, arguing that all of the allegations they sought to strike should have been stricken from the complaint.

II

DISCUSSION

A. The Anti-SLAPP Statutory Framework

The anti-SLAPP statute states: “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 Constitution or the 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).) The purpose of the anti-SLAPP statute is to dismiss meritless lawsuits designed to chill the defendant’s free speech rights at the earliest stage of the case. (See Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68.) The statute is to “be construed broadly.” (§ 425.16, subd. (a).)

An “‘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, 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.” (§ 425.16, subd. (e).)

To determine whether an anti-SLAPP motion should be granted or denied, 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).)’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.)

If that threshold is met, courts then look to the second step, determining whether the plaintiff has demonstrated a probability of prevailing on the merits. To do so, the plaintiff must state and substantiate a legally sufficient claim (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1122-1123), thereby demonstrating the case has at least “‘“minimal merit.”’” (Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1105.)

On appeal, “[w]e review an order granting an anti-SLAPP motion de novo, applying the same two-step procedure as the trial court.” (Cole v. Patricia A. Meyer & Associates, APC, supra, 206 Cal.App.4th at p. 1105.) In conducting our review, “[w]e consider ‘the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.’” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

B. Protected Activity

We must first decide whether the challenged claims arise from acts in furtherance of Wymont and Sandler’s right of free speech or right of petition under one of the categories set forth in section 425.16, subdivision (e). In doing so, “[w]e examine the principal thrust or gravamen of a plaintiff’s cause of action to determine whether the anti-SLAPP statute applies . . . .” (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519-520.) “A defendant who files a special motion to strike bears the initial burden of demonstrating that the challenged cause of action arises from protected activity.” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 669.) “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.)

“We assess the principal thrust by identifying ‘[t]he allegedly wrongful and injury-producing conduct . . . that provides the foundation for the claim.’” (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272.) We keep in mind that “[i]n the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) “The mere fact that a lawsuit was filed after the defendant engaged in protected activity does not establish the complaint ‘arose from’ protected activity under the statute because a cause of action may be triggered by protected activity without arising from it.” (Ben-Shahar v. Pickart (2014) 231 Cal.App.4th 1043, 1051.)

Wymont and Sandler identify certain categories of allegations they claim should have been stricken. They break them down as follows: 1) Sandler held himself out as having the authority to act for African Wireless after such authority had lapsed; 2) Sandler refused to turn over records of interactions regarding a potential sale of African Wireless or Congolese Wireless; 3) Sandler wrongly approved amended Articles of Congolese Wireless; and 4) the allegations in the third cause of action for declaratory relief. They also argue that all the allegations relate to a public issue. We address each in turn.

1. Authority to Act

The first set of allegations at issue here relate to the Conteh entities’s contention that Sandler continued to hold himself out as authorized to act on behalf of African Wireless after the 120-day period set forth in the conditional settlement. The relevant paragraph in the complaint alleged: “Except for [the 120-day] period, Sandler had no authority himself to act on behalf of [African Wireless] or to bind it to any obligation or legal restriction. . . . Plaintiffs are informed and believe and on that basis allege that Sandler has continued to hold himself out to third parties as having the authority to act for [African Wireless], or . . . has conducted himself in such a manner as to imply to others that he has such authority. He has done so and, on information and belief, has continued to do so notwithstanding that, after expiration of the Settlement’s 120-day period, Plaintiffs directly communicated in writing to [various entities] that Sandler has no such authority.”

Defendants argue that Sandler’s discussions with third parties were protected activity, arguing the anti-SLAPP statute applies to actions based on settlement negotiations and agreements pertinent to litigation. They argue that “efforts to sell [African Wireless] after the settlement period remained part and parcel” of efforts to settle the underlying case, because no sale could occur without a settlement.

Defendants, however, cite no evidence to back up these statements, and the burden is on them to demonstrate protected activity. The complaint alleges Sandler exceeded his authority as early as September 2014, long before the 2017 conditional settlement, as well as after it expired. As to the 2014 allegations, there is no evidence of a pending settlement at that time.

Further, with respect to the claims of excess authority after the 120-day period, we agree with the trial court that “[t]his is not shown to be connected to the settlement of the Lindsey case, because the settlement authority is alleged to have expired. This appears to allege a garden-variety claim of exceeding authority.” As defendants have not demonstrated otherwise, we find no allegations of protected activity within this paragraph of the complaint.

2. Turning Over Records

The next contested allegation in the complaint states: “Apart from their actual conduct within [African Wireless] or in business dealings with others on its purported behalf, Sandler and Wymont have refused to disclose to any [African Wireless] shareholder – not just Plaintiffs, but also, on information and belief, the co-parties to the Minority Contract – any of the communications, negotiations or documents concerning Sandler’s proclaimed effort to sell [Congolese Wireless] or [African Wireless], or any of his dealings with [relevant entities] ostensibly in the course of [African Wireless]’s business with such persons and entities. [African Wireless] and its shareholders have the right to full disclosure of such information to enable them as shareholder and [African Wireless] as a company to make critical business decisions going forward. Whether or not such materials would reveal self-dealing and breaches of fiduciary duty on the part of Defendants – and Plaintiffs have no doubt that they would – the refusal to turn over such information, to allow [African Wireless] to conduct business intelligently and with proper knowledge of the environment in which it is operating, itself breaches Defendants’ fiduciary duty of loyalty to [African Wireless] and its shareholders.”

Defendants argue this paragraph implicates the anti-SLAPP statute because their “free speech rights encompass what they have chosen not to say,” and further relate to the settlement of the Lindsey case. The trial court found that defendants had not met their burden to show the failure to turn over documents was either protected speech or related to a potential settlement, and upon our review, we agree.

Unlike the cases cited by defendants (see, e.g., Suarez v. Trigg Laboratories, Inc. (2016) 3 Cal.App.5th 118, 123), here, the allegation is of a breach of fiduciary duty by related entities, not simply adversaries, for failing to share communications regarding a potential sale. Defendants cannot hide behind free speech to avoid a claim for breach of fiduciary duty. If that were possible, no plaintiff would ever be able to use a failure to disclose as a factual underpinning for such a claim.

Nor do defendants meet their burden to show a direct relationship between the alleged nondisclosure and a potential settlement. When sufficiently abstracted, literally any communication (or noncommunication) made during the course of any lawsuit might theoretically be related to a potential settlement of that same lawsuit. But such an interpretation of the anti-SLAPP statute would be absurd, absent a specific factual basis for showing a connection between the activity and a concrete settlement effort. Defendants have failed to carry their burden to demonstrate such a connection here.

3. Amended Articles of Congolese Wireless

Next, defendants allege the court erred by finding that allegations concerning their purported wrongful approval of amended articles of Congolese Wireless was not protected activity. One relevant portion of the complaint alleged: “Plaintiffs discovered that, in September 2014, Sandler purported to agree on [African Wireless]’s behalf to amend [Congolese Wireless]’s organizational documentation, ostensibly to comply with new legal requirements in Congo, but in fact to strip Conteh of all power in [Congolese Wireless], to cede it entirely to an owner of minority shareholder Resotel, and thereby severely harm [African Wireless]’s interest in and divest its majority control over [Congolese Wireless].”

Defendants argue the amended articles were approved by Sandler in September 2014, shortly after the complaint in the Lindsey case was filed. They also argue that the alleged purpose of amending the articles, to divest African Wireless of its control over Congolese Wireless, was a “central issue” in the Lindsey case, and therefore, the connection to that case is “clear.”

But defendants miss the point. Merely because the issues are similar, it does not establish that the complaint’s allegations “arise[] from protected activity.” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, supra, 133 Cal.App.4th at p. 669.) The trial court found that defendants simply failed to meet their burden to establish such a connection, and we agree.

4. The Declaratory Relief Claim

In this cause of action, the plaintiffs are seeking a determination of what percentage of shareholders must approve African Wireless’s hiring a third party to value the company and to negotiate a possible sale. Plaintiffs believed they had sufficient voting power, and on information and belief, alleged defendants disagreed. Plaintiffs sought declaratory relief on this point. Defendants assert the dispute over valuation of the shares is preparatory to a sale of African Wireless and therefore protected activity.

Section 1060 states in relevant part: “Any person interested under a . . . contract, or who desires a declaration of his or her rights or duties with respect to another . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties . . . including a determination of any question of construction or validity arising under the . . . contract.”

The trial court noted that the cause of action for declaratory relief did “not depend on a prior litigation, or petitioning activity, or speech on a public issue. They appear to allege, simply, that there is disagreement among the shareholders of a private company, about the percentage of the owners, who are required to vote for a particular corporate act. . . . [¶] The declaratory relief claim does not depend on allegations of protected activity, as its core. While the declaratory relief cause of action incorporates the lengthy history in the Complaint, and the background facts, they appear to be more properly characterized as ‘background’ in relation to this claim.” The trial court noted that defendants were attempting to broadly use the Lindsey case to “‘sweep’ in and cover all corporate activity or acts that have a connection to it, and are they thus protected speech or petitioning activity connected to litigation[.] If viewed as the backdrop of various internal affairs and events, it would appear to have the potential to shield almost anything connected to it. For this reason, with the fairly narrow topic that the Plaintiffs have carved out within the declaratory relief cause of action, it is not considered to be a ‘SLAPP’ claim.”

We agree. “Determining the gravamen of the claims requires examination of the specific acts of alleged wrongdoing . . . .” (Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 804.) Further, “[a]ssertions that are ‘merely incidental’ or ‘collateral’ are not subject to section 425.16. [Citations.] Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral, supra, 1 Cal.5th at p. 394.)

Here, there is no “wrongdoing” as such, but a very specific dispute about corporate governance. Merely because there is some relation to ongoing underlying litigation, it does not follow that the declaratory relief action “arises from protected activity.”

5. Issue of Public Interest

To the extent defendants claim any or all of the allegations that the trial court declined to strike, or the complaint as a whole, relates to a public interest or issue, we disagree. As noted above, the final prong of section 425.16, subdivision (e)(4), states that the following is within the ambit of the anti-SLAPP statute: “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.” (Italics added.)

As the California Supreme Court recently noted: “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. . . . [¶] Admittedly, the catchall provision [subdivision (e)(4) of section 425.16] contains no similar contextual references to help courts discern the type of conduct and speech to protect. . . . Nothing in subdivision (e)(4) or other portions of the statute supports the conclusion that subdivision (e)(4) is the only subdivision where contextual information is excluded from consideration in discerning the type of conduct and speech worthy of procedural protection.” (FilmOn.com Inc. v. DoubleVerify, Inc. (2019) 7 Cal.5th 133, 143-144.) Thus, the context of the speech matters in determining whether this provision applies.

One case provides the following definition of public issue or interest: “(1) The subject of the statement or activity precipitating the claim was a person or entity in the public eye. [Citations.] [¶] (2) The statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants. [Citations.] [Or] [¶] (3) The statement or activity precipitating the claim involved a topic of widespread public interest.” (Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 33.) In that case, the court found an offer of investment services to a very small group of investors in a competing firm did not constitute a matter of public interest. (Id. at p. 34.)

But “‘public interest’ does not equate with mere curiosity. [Citations.] Second, a matter of public interest should be something of concern to a substantial number of people. [Citation.] Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. [Citations.] Third, there should be some degree of closeness between the challenged statements and the asserted public interest [citation]; the assertion of a broad and amorphous public interest is not sufficient [citation]. Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy. . . .’” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132-1133.)

Further, in the context of the anti-SLAPP statute, “public issue” and “public interest” refer to issues of “public concern.” (Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 929.) “Public interest” generally applies only to private conduct if that conduct “impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.)

The “public” in question may be a foreign public. (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042.) As evidence that the alleged statements at issue here are issues of public concern in the Congo, defendants submitted the following: 1) A 2010 article from a website called Tech Central entitled “Exclusive: Congo partner accuses Vodacom of fraud,” 2) A 2010 article from Tech Central entitled “Vodacom sticks out Congo troubles – for now,” 3) A 2010 article from Tech Central entitled “[Congolese President] Kabila intervenes in Vodacom DRC dispute,” 4) A 92 word Bloomberg article from 2015 stating that Vodacom had been sued for $14 billion by Conteh, and 5) A Forbes Afrique article from 2016 which references Conteh, but is entirely in French and is not accompanied by a certified translation.

Defendants offer no explanation as to how or why the 2010 articles are relevant to the statements alleged in the complaint, and we find they fail to demonstrate “some degree of closeness between the challenged statements and the asserted public interest.” (Weinberg v. Feisel, supra, 110 Cal.App.4th at pp. 1132-1133.) Defendants attempt to rely on the contents of those articles, but the contents, as the trial court determined, are not subject to judicial notice. The Forbes Afrique article, as it is untranslated, is simply irrelevant. That leaves defendants with the 92 word Bloomberg article which simply reports a lawsuit was filed. Legal disputes are often covered in business news for a variety of reasons, and in that context, such an article alone is legally insufficient to establish a public interest or issue.

The only other evidence defendants point to is their assertion that plaintiffs “have judicially admitted that ‘those in power in [Congo]’ have direct financial interests in the companies’ operations . . . .” But such a connection does not compel an inference that such a connection, without more, means any statements in the instant complaint were a subject of public interest or a public issue. “‘“The fact that ‘a broad and amorphous public interest’ can be connected to a specific dispute is not sufficient to meet the statutory requirements” of the anti–SLAPP statute. . . .’” (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1216.) Defendants have failed to meet their burden to demonstrate the complaint or any statements therein should be subject to the anti-SLAPP statute on this ground.

C. Minimal Merit

Because we find no basis for reversing the trial court’s findings that the disputed allegations were not protected activity, we need not reach the issue of whether plaintiffs demonstrated the minimal merit necessary to overcome an anti-SLAPP motion.

III

DISPOSITION

The trial court’s order is affirmed. Plaintiffs are entitled to their costs on appeal.

MOORE, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.