Filed 5/4/20 American River AG, Inc. v. Ambrose CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

AMERICAN RIVER AG, INC. et al.,

Plaintiffs and Respondents,

v.

KENNETH AMBROSE et al.,

Defendants and Appellants.

C089352

(Super. Ct. No. 34-2018-00246848-CU-BT-GDS)

This case arises out of a dispute between property owners in rural south Sacramento County over pollution and nuisance conditions allegedly caused by a company that solar dries potatoes for use in pet food and feedstock for ranch and farm animals. Defendants appeal from the trial court’s order denying their special motion to strike the complaint under Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP statute. We affirm the trial court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

The Parties and Related Nuisance Action

American River Ag., Inc. (ARA) and American Hay & Cattle, LLC (AHC) are the plaintiffs in this case (collectively, plaintiffs). AHC owns real property located at 875 Alfalfa Plant Road in Courtland (the Property), which is in rural south Sacramento County. Historically, an alfalfa plant was operated on the Property. Currently, ARA operates a sun drying vegetable farm on the Property. ARA buys and harvests potatoes, solar dries them, and then sells them to pet food manufacturers for use in pet food. It also sells the solar-dried potatoes to farmers and ranchers to use as feedstock for their animals.

Defendant Kenneth Ambrose owns real property in Sacramento County, either individually or in his capacity as “a Co-Trustee of the Kenneth and Regina Ambrose Family Trust Dated 03-31-97.” Ambrose formerly owned real property in Courtland near the Property and resided there on a part-time basis. Currently, his three children are part-time residents of Courtland.

Defendant Ambrose Consulting Corporation (ACC) is a Nevada corporation with its principal place of business in Nevada. Ambrose and his wife are the sole shareholders of ACC.

According to Ambrose, “[p]laintiffs’ activities and operations at [the Property] have caused and continue to cause offensive odors, particulate laden air and air pollution, insect infestations, and water pollution.” In May 2017, he met with the operations manager of ARA, Quin Smith. During that meeting, Ambrose informed Smith that the adverse impacts caused by the activities on the Property (e.g., stench, dust, “insect events”) were unacceptable, and that, absent improvements and compliance with best management practices, he would “involve the courts or regulatory agencies.” Because plaintiffs failed to take meaningful measures to improve the conditions caused by their activities on the Property, Ambrose filed complaints with the Sacramento Metropolitan Air Quality Management District (SMAQMD or District).

In July 2017, the District issued a notice of violation, alleging that ARA had created a public nuisance from the storage and processing of potatoes, which had caused “[i]njury to air quality, property, or persons related to the amount emitted.” In December 2017, ARA agreed to settle the alleged violation by paying a civil penalty in the amount of $750. The terms of the settlement precluded the District from “instituting abatement proceedings or permit revocation, or from seeking additional penalties concerning this alleged violation.”

At some point after September 10, 2017, Ambrose retained an attorney to file a lawsuit against plaintiffs on behalf of his children and other persons residing near the Property. Ambrose agreed to fund the lawsuit to “stop the adverse impacts and injuries” caused by plaintiff’s “illegal operations” on the Property. The lawsuit was filed on October 9, 2018, in Sacramento County Superior Court. It alleges causes of action for public nuisance, private nuisance, trespass, negligence, and unlawful business practices (hereafter, “public nuisance lawsuit”).

Plaintiffs’ Complaint

On December 18, 2018, plaintiffs commenced this action against defendants, alleging five causes of action, including claims for physical invasion of privacy and trespass. Plaintiffs allege that Ambrose has attempted to buy parcels adjacent to the Property over the years through “unsavory methods,” including suing the rightful owners of real property in court and filing lis pendens in matters where such a filing was not warranted, and that Ambrose and ACC (collectively, defendants) “wish to reduce the value of the . . . Property by causing ARA to close or relocate its business, such that AHC w[ould] be forced to sell . . . the [P]roperty at an unfair and below market price.” Towards this end, Ambrose approached various residents living near the Property and requested access to their property for the purpose of installing an air quality monitor, “purportedly to monitor the air near Alfalfa Plant Road.” Specifically, in or about spring 2018, Ambrose asked a farmer who owns property “immediately abutting” the Property if he could install an air monitoring device on the property but the farmer refused to allow him to do so.

In or about the summer of 2018, ARA employees observed a box affixed to a tall pole on a property “immediately abutting” the Property. On or about September 10, 2018, an ARA employee noticed that this pole had fallen down and was blocking the flow of water through a culvert on or near the east boundary of the Property. The wooden box, which appeared to be an air monitoring device, had a label affixed to it that said, “ ‘SMAQMD Air Monitoring Station.’ ” The label also contained SMAQMD’s logo and the name and phone number of two employees that worked for the District. An ARA employee immediately contacted the District about the box.

The following day, District employees inspected the box, which was empty, and determined that it did not belong to the District. After an investigation, the District informed ARA that Ambrose had admitted the box belonged to him. Ambrose also admitted that he had created the label on the box and placed the “floating piece of wood in a ditch adjacent to [the Property]” in June 2018. According to plaintiffs, Ambrose installed the “fake” air monitoring box for the purpose of intimidating, threatening, harassing, and defrauding them and their employees and officers.

On or about October 31, 2018, ARA employees observed a low flying helicopter in “AHC’s airspace.” On or about November 9, 2018, ARA employees observed low flying drones in “AHC’s airspace.” According to plaintiffs, the low flying helicopter and drones were conducting surveillance of their business operations on the Property and taking photographs of ARA employees for the purpose of intimidating, threatening, and harassing ARA and its employees and officers. Plaintiffs further claim that defendants authorized these “invasive actions” and provided photographs taken by the helicopter and drones to third parties without their consent or the consent of their employees.

Anti-SLAPP Motion

On January 17, 2019, defendants filed a special motion to strike the complaint under the anti-SLAPP statute. Among other things, defendants argued that such relief was appropriate because the complaint is based on and arose out of protected activity—namely, Ambrose’s acts in furtherance of his constitutional rights of petition and free speech in connection with an important public issue or issue of public interest: “the harmful pollution conditions generated by Plaintiffs’ Dog Food Factory.” Defendants claimed that this action was commenced by plaintiffs in retaliation for (1) Ambrose’s filing of complaints with regulatory agencies (e.g., SMAQMD) about the “pollution conditions” created by the “Dog Food Factory,” and (2) Ambrose’s initiation and funding of the public nuisance lawsuit filed against plaintiffs on October 9, 2018. Defendants argued that the complaint was subject to dismissal because the complained-of acts in the complaint are protected speech and petitioning activity under the anti-SLAPP statute, as the acts involved prelitigation investigative activity and the collection of evidence to be used in the public nuisance lawsuit and complaints to regulatory agencies.

Plaintiffs filed a written opposition to the special motion to strike. They argued among other things, that the motion should be denied because defendants did not engage in protected activity under the anti-SLAPP statute.

Trial Court’s Ruling

After hearing argument from counsel, the trial court denied the special motion to strike, finding that none of the claims alleged in the complaint arose from protected activity under the anti-SLAPP statute.

Defendants timely appealed.

DISCUSSION

1.0 Applicable Law and Standard of Review

“A SLAPP is a civil lawsuit that is aimed at preventing citizens from exercising their political rights or punishing those who have done so. ‘ “While SLAPP suits masquerade as ordinary lawsuits . . . , they are generally meritless suits brought primarily to chill the exercise of free speech or petition rights by the threat of severe economic sanctions . . . and not to vindicate a legally cognizable right.” ’ [Citation.]” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) The Legislature enacted the anti-SLAPP statute to prevent and deter “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); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192 (Varian).) The statute provides that “[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 . . . shall be subject to a special motion to strike, unless the court determines . . . there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)

SLAPP suits may be disposed of summarily by a special motion to strike under section 425.16, commonly known as an “anti-SLAPP motion,” which is “a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation.” (Varian, supra, 35 Cal.4th at p. 192.) In ruling on an anti-SLAPP motion, the trial court engages in a two-step process. First, the defendant must establish that the challenged claim arises from activity protected by the anti-SLAPP statute. “[T]he moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. (Id. at p. 384.) Only a claim that satisfies both parts 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. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

“A defendant meets his or her burden on the first step of the anti-SLAPP analysis by demonstrating the acts underlying the plaintiff’s cause of action fall within one of the four categories spelled out in section 425.16, subdivision (e).” (Collier v. Harris (2015) 240 Cal.App.4th 41, 50-51.) As relevant here, subdivision (e)(4) of that statute, known as the “ ‘catch-all’ ” category, defines protected activity to include not only speech itself, but also “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)(4); Collier, at p. 51.)

“The sole inquiry under the first prong of the anti-SLAPP statute is whether the plaintiff’s claims arise from protected speech or petitioning activity.” (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490.) The critical point to establishing the “arising from” requirement is whether a claim itself was based on an act in furtherance of the defendant’s right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670 (Peregrine Funding).) “In other words, ‘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.]’ ” (Peregrine Funding, at p. 670.) In determining whether a cause of action arises from protected activity, “the focus is on . . . what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ [Citation.] ‘The only means specified in section 425.16 by which a moving defendant can satisfy the [“arising from”] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . .’ [Citation.] In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063.)

“A cause of action does not ‘arise from’ protected activity simply because it is filed after protected activity took place. [Citation.] Nor does the fact ‘[t]hat a cause of action arguably may have been triggered by protected activity’ necessarily entail that it arises from such activity. [Citation.] The trial court must instead focus on the substance of the plaintiff’s lawsuit in analyzing the first prong of a special motion to strike. [Citations.]” (Peregrine Funding, supra, 133 Cal.App.4th at p. 669; see Freeman v. Schack (2007) 154 Cal.App.4th 719, 727 [“ ‘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’ ”].) As our Supreme Court recently explained, “[A] claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park v. Board of Trustees of California State University, supra, 2 Cal.5th at p. 1060.)

We review the trial court’s ruling on an anti-SLAPP statute de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) “Thus, our review is conducted in the same manner as the trial court in considering an anti-SLAPP motion.” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672.) The statute requires us to “consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) We therefore consider not only plaintiffs’ complaint, but also the declarations filed in support of and in opposition to the anti-SLAPP motion. We do not weigh the credibility of that evidence and we accept as true the evidence favorable to the plaintiff. (Flatley, at p. 326; see Dible v. Haight Ashbury Free Clinics, Inc. (2009) 170 Cal.App.4th 843, 849 [in reviewing an order denying an anti-SLAPP motion, we primarily review the complaint; however, we also review papers filed in connection with the motion to the extent that they might give meaning to the words in the complaint].) To satisfy his or her burden at the first step, the defendant must make a prima facie showing that his or her alleged actions fall within the ambit of the anti-SLAPP statute. (Flatley, at p. 317.)

2.0 Analysis

We conclude the trial court properly denied the special motion to strike. Contrary to defendants’ contention, the claims alleged in the complaint do not arise from protected activity under the anti-SLAPP statute. The activity on which the claims in the complaint are based is not activity taken by defendants in furtherance of their right of petition or free speech. The complaint does not allege that defendants did something wrong by filing complaints with regulatory agencies or by initiating and funding the public nuisance lawsuit against plaintiffs. Rather, the complaint alleges that defendants did something wrong by: (1) conducting aerial surveillance of plaintiffs’ business operations by causing a helicopter and drones to fly at a low altitude over the Property and take photographs of ARA employees, which were sent to third parties without their consent; (2) misrepresenting to plaintiffs that the District was monitoring the air quality of the Property by installing a fake air monitoring box with a SMAQMD label on a tall pole on a parcel “immediately abutting” the Property; and (3) invading the Property when the pole fell down and clogged a waterway on or near the east boundary of the Property. As the trial court correctly concluded, none of these acts were undertaken by defendants in furtherance of their right of petition or free speech. Accordingly, because the claims alleged in the complaint do not arise from protected activity under the anti-SLAPP statute, the complaint is not subject to dismissal pursuant to a special motion to strike.

We reject defendants’ contention that Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049 (Tichinin) compels a contrary result. In Tichinin, the Court of Appeal addressed whether or not the right of petition protected an attorney’s—Bruce Tichinin’s—hiring of a private investigator to investigate rumors of an affair between the Morgan Hill city manager and the Morgan Hill city attorney, the outcome of which would determine how Tichinin proceeded in a legal matter he was retained to handle. (Id. at pp. 1057, 1059, 1064.) In concluding that this investigative conduct was protected activity under the First Amendment, the court found pertinent a line of federal cases applying the Noerr-Pennington doctrine, which “immunizes conduct encompassed by the petition clause—i.e., legitimate efforts to influence a branch of government—from virtually all forms of civil liability,” because “in deciding whether the doctrine applies, a court must first determine whether conduct falls within the right to petition.” (Tichinin, at p. 1065.)

The Tichinin court explained that it considered the line of federal cases “persuasive authority for the proposition that nonpetitioning conduct is within the protected ‘breathing space’ of the right of petition if that conduct is (1) incidental or reasonably related to an actual petition or actual litigation or to a claim that could ripen into a petition or litigation and (2) the petition, litigation, or claim is not a sham.” (Tichinin, supra, 177 Cal.App.4th at p. 1068.) Applying that standard to Tichinin’s hiring of a private investigator to investigate “a possible conflict of interest due to an alleged inappropriate romantic relationship between public officials,” the court concluded such activity fell “within the protected ‘breathing space’ of the right to petition,” explaining: “When one suspects that another has caused harm, a preliminary investigation is usually necessary in order to know whether one has a potential legal claim, evaluate the likelihood of success, and decide whether or not to assert it. Consequently, the investigation of a potential claim is normally and reasonably part of effective litigation, if not an essential part of it. Indeed, as Tichinin correctly notes, an attorney has a duty to investigate the facts underlying a client’s claims and can be sanctioned for failing to do so. [Citations.] In our view, moreover, the prelitigation investigation of a potential claim is no less incidental or related to possible litigation than prelitigation demand letters and threats to sue, which are entitled to protection. In fact, such letters and threats are themselves likely to be the result of a prelitigation investigation.” (Id. at pp. 1068-1069.) However, the Tichinin court noted that conduct which constitutes “a separate and distinct activity” from litigation is not protected. (Id. at p. 1065.)

Finally, with respect to whether the litigation was a sham, the Tichinin court explained the analysis of this issue arose in the context of the second step of the anti-SLAPP analysis, i.e., whether or not Tichinin had established a probability of prevailing on his claim against the city for unlawful retaliation against him for exercising his constitutional right of petition (brought under 42 U.S.C. § 1983). The court determined Tichinin established such a probability unless “evidence presented in the anti-SLAPP motion would preclude such a finding as a matter of law”; the question was “whether the evidence conclusively establishes that the alleged romantic relationship and claim[ed] conflict of interest that [he] purported to investigate were just a sham.” (Tichinin, supra, 177 Cal.App.4th at pp. 1071-1072.) The court concluded there was no evidence conclusively establishing either that the investigation was “objectively baseless” or that it was “pursued . . . for an improper reason unrelated to a legitimate petitioning purpose.” (Id. at p. 1072.)

Defendants’ reliance on Tichinin is misplaced. They rely on Tichinin for the proposition that their conduct incidental or related to protected petitioning activity—namely, their prelitigation investigative conduct and their “evidence gathering conduct” for the public nuisance lawsuit and regulatory complaints—qualifies as protected activity under the anti-SLAPP statute. We find Tichinin distinguishable and defendants have failed to show that its reasoning extends to the facts of this case—a private neighbor dispute involving allegations of trespass, invasion of privacy, and fraud predicated on aerial surveillance of private property by a low flying helicopter and drones, and the installation of a “fake” air monitoring box with an SMAQMD label that invaded private property. (See People ex rel. Harris v. Aguayo (2017) 11 Cal.App.5th 1150, 1155-1157, 1163 [concluding that conduct in support of a fraudulent scheme to misappropriate distressed real property, including trespass and fraud, was not protected petitioning activity under the Noerr-Pennington doctrine, and that such conduct did not fall under the protected categories of “ ‘prelitigation investigation’ ” or “ ‘prelitigation communications among parties’ ” discussed in Tichinin].)

As plaintiffs correctly point out, the aerial surveillance of the Property took place after the related public nuisance lawsuit was filed against plaintiffs, and therefore does not constitute “prelitigation” investigation. Further, as the trial court noted, Ambrose’s conduct with respect to the “fake” air monitoring box was not prelitigation investigative activity. Nor did it involve the gathering of evidence for regulatory complaints or the public nuisance lawsuit. It is undisputed that the box was empty and therefore could not have collected air samples. We reject defendants’ contention that the aerial surveillance was constitutionally protected activity because Ambrose was gathering evidence for use in regulatory complaints and the public nuisance lawsuit. Presumably, the counsel Ambrose retained to file the public nuisance lawsuit, which was filed before the aerial surveillance, investigated the claims alleged therein and determined sufficient evidence existed to support them. After a civil lawsuit has been filed, the proper mechanism to obtain evidence from an opponent is through the civil discovery process. On this record, we cannot conclude that the complained-of aerial surveillance constitutes conduct in furtherance of protected petitioning activity on the basis that it is “reasonably related” to actual litigation or the filing of regulatory complaints, which could have been, and some were, filed without the evidence gathered from aerial surveillance of the Property through the use of a low flying helicopter and drones. Defendants cite no authority supporting a contrary conclusion.

Finally, we note that defendants rely on various other cases to support their contention that the complained-of acts in the complaint are protected activity. However, with one exception, defendants provide no legal analysis explaining how these cases apply to the circumstances of this case. “[A]n appellant is required to not only cite to valid legal authority, but also explain how it applies in his case.” (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 10.) An appellate court may disregard points where “the relevance of the cited authority is not discussed or points are argued in conclusionary form.” (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) In any event, having reviewed the cases, we conclude that none of them support the defendants’ position, including the case defendants analyze in their opening brief. (See Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 166 [reporting the news requires the assistance of newsgathering and other related conduct and activity, which are acts undertaken in furtherance of the news media’s right to free speech, and therefore protected conduct under the anti-SLAPP statute].)

Since defendants did not carry their burden to show that any of the claims alleged in the complaint arose from protected activity under the anti-SLAPP statute, we need not and do not decide whether plaintiffs demonstrated a probability of prevailing on the merits.

DISPOSITION

The trial court’s order denying the anti-SLAPP motion is affirmed. Costs on appeal are awarded to plaintiffs. (Cal. Rules of Court, rule 8.278(a)(1).)

/s/

BUTZ, J.

We concur:

/s/

ROBIE, Acting P. J.

/s/

MAURO, J.