Lawzilla Additional Information:
Per the Sacramento court records plaintiff is represented by attorney John Cassinat whose client will be sanctioned by the court.

2017-00223783-CU-BC

Joseph Mohamed vs. Pulte Home Corporation

Nature of Proceeding: Motion to Strike (SLAPP)

Filed By: Kopp, Philip D.

This motion was continued from April 17, 2018, for purposes of oral argument only. The previously issued tentative ruling is re-printed below.

Defendants Pulte Home Corporation’s, Pulte Home Company, LLC’s, and Gregory Van Dam’s special motion to strike pursuant to CCP § 425.16 is granted.

In this action Plaintiff Joseph Mohamed, as Trustee of the Joseph Mohamed, Sr. and Shirley M. Mohamed Charitable Trust Remainder Unitrust, II dated June 11, 1998 alleges causes of action for breach of contract, fraud, negligent misrepresentation and slander of title. Plaintiff alleges that he is the owner of a conservation easement of 80 acres of land in the City of Elk Grove (“City”). He alleged that he and Pulte Homes Corp. entered into a settlement agreement giving Pulte an option to purchase the conservation easement. (Comp. ¶ 12, Exh. A..) The option expired on December 31, 2011. Under the agreement, Pulte was required to provide notice to Plaintiff if it decided to exercise the option. Pulte was not required to provide notice if it did not exercise the option. (Comp. ¶ 13, Exh. A.) After expiration of the option and upon request by Plaintiff, Pulte was required to quitclaim all unused interest in the conservation easement. Plaintiff alleges that Pulte never provided written notice that it was exercising the option to purchase the conservation rights. Between 2012 and 2103 Pulte engaged in negotiations with the City regarding development of the Zgraggan Ranch and Poppy Ridge subdivisions. (Comp. ¶¶ 23-28, Exhs.D, E.) Plaintiff alleged that Defendants either falsely represented that it owned the conservation rights or failed to disclose that it did not own those rights. (Comp. ¶ 23.) Plaintiff alleges that Defendant Van Dam, a Pulte employee, made numerous misrepresentations and material omissions to the City of Elk Grove in April 2013 which allegedly caused the City to transfer Plaintiff’s conservation rights to two Pulte subdivisions despite Pulte not paying for the rights.

Defendants move to strike the second through fourth causes of action for fraud, negligent misrepresentation and slander of title pursuant to CCP § 425.16.

The Court’s review of an anti-SLAPP motion involves a two-prong process. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) First, Defendant must establish that the challenged causes of action arose from “an act…in furtherance of [their] right of petition or free speech.” (CCP § 425.16(b)(1).) If Defendant meets that burden, then the second prong requires Plaintiffs to establish “that there is a probability that [Plaintiffs] will prevail on the claim.” (Id.) Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech and lacks even minimal merit is a SLAPP, subject to being stricken under the statute. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820; citations omitted.) Thus, initially, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1046. ) “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)” (Braun v. Chronicle Publishing Co. (1997) 52 Cal. App.4th 1036, 1043.) Indeed, Anti-SLAPP motions may only target claims “arising from any act of [the defendant] in furtherance of the [defendant’s] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue … .” (§ 425.16, subd. (b).) Accordingly, the Legislature has defined such protected acts in furtherance of speech and petition rights to include a specified range of statements, writings, and conduct in connection with official proceedings and matters of public interest. (Id., subd. (e).)

A claim arises from protected activity when that activity underlies or forms the basis for the claim. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Saliently, “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.” (City of Cotati, at p. 78; accord, Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.) “[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.” (Navellier v. Sletten, (2002) 29 Cal.4th 82, 89; see City of Cotati, at p. 78 [suit may be in “response to, or in retaliation for,” protected activity without necessarily arising from it].) Instead, the focus is on determining what “the defendant’s activity [is] that gives rise to his or her asserted liability-and whether that activity constitutes protected speech or petitioning.” (Navellier, at p. 92, italics omitted.) “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) … .” Equilon Enterprises v. Consumer Cause, Inc. 29 Cal.4th at p. 66.

Subdivision (e) provides: “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, 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.”

First Prong-Arising From Protected Speech

In determining whether Defendants met their burden, the Court considers not only the pleadings, but also the “supporting and opposing affidavits stating the facts which the liability or defense is based.” (CCP § 425.16(b)(2).) ‘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, supra, at p. 79.) As noted by relevant authority, it is crucial to look past the allegations in the complaint and to consider affidavits in order to obtain the complete picture of the plaintiff’s claims. (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 630.)

CCP § 425.16(e)(1) and (e)(2) “encompass[ ] any cause of action against a person arising from any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body.” (Briggs v. Eden Council for

Hope & Opportunity (1999) 19 Cal.4th 1106, 1113.) “Thus 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.) “[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),…such statements are equally entitled to the benefits of section 425.16.” (Briggs, supra, 19 Cal.4th at 1115 [citations omitted].) “Accordingly, although litigation may not have commenced, if a statement ‘concern[s] the subject matter of the dispute’ and is made ‘in anticipation of litigation ‘contemplated in good faith and under serious consideration’ then the statement may be petitioning activity protected by section 425.16.” (Bailey v. Brewer (2011) 197 Cal.App.4th 781, 789-790.) California courts “have looked to the litigation privilege as an aid in construing the scope of section 425.16, subdivisions (e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry.” (Feldman v. 1100 Park Lane Assocs. (2008) 160 Cal.App.4th 1467, 1479.)

Defendants argue that the alleged misconduct in this action arises from communications between Defendants and the City during a proceeding authorized by law, specifically, a subdivision approval process. Defendants argue that these types of communications are “inherently part of one’s First Amendment right to petition the government.” (Mot. 8:5-6.) According to Defendants, the subject communications are protected because they were made during an official proceeding. Again, case law interpreting the litigation privilege are an aid in determining the scope of the anti-SLAPP statute. To that end, “[t]he official proceeding privilege is broadly applied and doubts are resolved in its favor.” (Hawran v. Hixon (2012) 209 Cal.App.4th 256, 283 [discussing Civil Code § 47].) Defendants argue that the subject communications here deal with Pulte’s petition to the City for approval of its subdivision plans for the Zgraggan Ranch and Poppy Ridge developments and that the alleged misrepresentations occurred in negotiations of the mitigation plan. (Comp. ¶¶ 23-28.) Defendants argue that these communications are inherently protected because they involve the City’s approval of a subdivision plan and that the City has established divisions, commissions, and personal for the process and holds meetings to discuss the same, all of which are a public process.

Plaintiff argues that Defendants failed to meet their burden to show that the challenged causes of action arise from protected activity. Plaintiff contends that Defendants’ argument is premised on the contention that every false statement made to a public official is entitled to First Amendment protection. Plaintiff characterizes this as garden variety fraud case not entitled to protection. Plaintiff argues that the cases cited by Defendants are inapplicable because Defendant Van Dam’s statements were not part of an official proceeding authorized by law, were not part of an investigation, do not involve a public issue and were not made in the context of a report to law enforcement officials.

Plaintiff is correct that Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350 cited by Defendants involved a case where it was found that there is no tort liability for statements made by a citizen to law enforcement to report suspected criminal activity unless the plaintiff could establish malicious prosecution. He is also correct that Robinson v. Alameda County (N.D. Cal. 2012) 875 F.Supp.2d 1029, 1049 dealt with statements made to Internal Affairs which were intended to instigate an official investigation into wrongdoing. According to Plaintiff, the conduct at issue here,

specifically Defendant Van Dam’s allegedly false statements to the City in the permitting process, were not complaints or reports of past misconduct designed to instigate an investigation and thus cannot be entitled to protection.

Plaintiff’s opposition takes a too limited view of what constitutes protected activity. Protection for statements made to public officials is not limited to reporting misconduct to law enforcement to instigate an investigation into the misconduct. To that end, “[a] communication to an official agency which is designed to prompt action is considered part of an official proceeding for purposes of Civil Code section 47.” (Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439.) Again cases discussing Civil Code § 47 are instructive. Walker’s statement is not limited to communications calling for investigation of wrongdoing.

In reality, Plaintiff’s very own characterization of the subject conduct confirms it is protected as it is premised on statements made in connection with an official proceeding. According to Plaintiff, the only speech involved was in April 2013 when Defendant Van Dam sent allegedly false and misleading emails to convince the City to issue building permits for the subject subdivision. That is, he confirms that his lawsuit is premised on communicative activity to the City in connection with the City’s permitting process. To that end, all of the alleged communications which form the basis of the second through fourth causes of action relate to communications made by Defendant Van Dam to the City with respect to Pulte’s attempt to finalize entitlements and permits associated with the Zgraggen subdivision and Poppy Ridge project. (Comp. ¶ 24.) Specifically, he alleges that “[c]ommencing no later than January 2012, Defendants began working with the City to finalize the entitlements and permits associated with the Zgraggan subdivision and on the Poppy Ridge project sometime after.” (Id.) He alleges that Defendants and the City exchanged correspondence and documents and held meetings which were required to determine whether mitigation measures for the projects were satisfied. (Id. ¶¶ 20, 24-31.) Such measures were necessary for approval of the subdivision. (Id. ¶ 9.)

Case law has held that this type of conduct is entitled to protection under CCP §

425.16. For example, while neither side cited the following two cases, a breach of contract cause of action based on statements made and plans submitted to a planning commission and city council involved acts in the course of an official proceeding and in furtherance of the right of petition and free speech. (Midland Pacific Building Corp. v. King (2007) 157 Cal.App.4th 264, 272-273.) Further, the submission of site plans which were alleged to contain false statements as part of the development process were considered to be part of an official proceeding as the maps were submitted to the City as part of a permitting process. (M.F. Farming Co. v. Couch Distributing, Co., Inc. (2012) 207 Cal.App.4th 180, 194-195 [overruled in part on other grounds in Baral v. Schnitt (2016) 1 Cal.5th 376, 396].) Here, too, Plaintiff alleges that Defendants made false statements in connection with the City’s permitting process. The challenged causes of action are expressly premised on Defendants’ conduct in connection with the City’s permitting process, which is an official proceeding. Again, as discussed above, the official proceeding privilege is broadly construed. (Hawran, supra, 209 Cal.App.4th at 283.) “[A]ll that matters is that the First Amendment activity take[s] place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding.” (Biggs, supra, 19 Cal.4th at 1118.) “Any matter pending before an official proceeding possesses some measure of public significance owing solely to the public nature of the proceeding, and free discussion of such matters furthers effective exercise of the petition rights section 425.16 was intended to protect.” (Id.) With

respect to statements made “in connection with issues under consideration or review by official bodies or proceedings”, there is no need for the moving party to demonstrate that the statement concerned an issue of public significance. (Id. at 1123.)

Plaintiff’s argument that there can be no protected speech here because Defendants made false statements is incorrect. To that end, Plaintiff cites to Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696 where it was found that making a false police report was not protected speech under CCP § 425.16. Plaintiff misapprehends the scope of that case. Indeed, statements alleged to be false are frequently entitled to protection under CCP § 425.16. (E.g., Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1175-1176.) “However, conduct that would otherwise be protected by the anti-SLAPP statute does not lose its coverage simply because it is alleged to have been unlawful… It that were the test, the anti-SLAPP statute would be meaningless.” (Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1545.) In Lefebvre, the defendants were not entitled to protection under the anti-SLAPP statute for making a police report because the trial court found that the record “conclusively” established that their reports to the police were “illegal activity” under Penal Code § 148.5. The appellate court upheld that finding. The appellate court noted that while the defendants might have a defense pursuant to Civil Code § 47(b), the anti-SLAPP statute was not implicated given the conclusive finding that they engaged in illegal conduct, a finding which the defendants conceded. Thus, Lefebvre was one of the rare situations where the evidence conclusively established the illegality of the defendants’ conduct and they conceded the same. It is only where the “defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 320.) “Illegal” under Flatley means criminal, not simply violative of a statute. (Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654.) Under Flatley “when a defendant’s assertedly protected activity may or may not be criminal activity, the defendant may invoke the anti-SLAPP statute unless the activity is criminal as a matter of law.” (Gerbosi, supra, 193 Cal.App.4th at 446.) Here, not only have Defendants not conceded the illegality of the conduct but Plaintiff’s evidence does not conclusively establish that the conduct is criminal as a matter of law.

The allegations that form the basis of the second through fourth causes of action are all premised on Defendants’ petitioning activity for the sole purpose of requesting approval of subdivision plans. The communications were designed to prompt City’s action, specifically, City’s approval of the subdivision plans. The alleged false statements were therefore made in connection with an official proceeding authorized by law, or an issue under consideration or review by an executive body (City) or official proceeding authorized by law.

While Defendants were not required to demonstrate that the communications relate to an issue of public importance given the conclusion above that the statements were made in connection with an official proceeding, they nevertheless make such a showing. A statement relates to a public issue if: (1) The subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) The statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; 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.) Here the

allegations involve claims related to two large real estate development projects (over 80 acres) in the City of Elk Grove. The allegations involve conduct that could affect large numbers of people beyond the participants in this action and also development of the projects in the City could be said to be a topic of widespread public interest. Indeed, mere applications by homeowners to their homeowners’ association regarding common area improvements in the community were found to be issues of public interest. (Colyear v. Rolling Hills Community Association of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 130-131.) Arguably, the issues in the instant case have even greater public interest given the larger scale of the developments. Plaintiff makes no argument in opposition regarding this alternate ground.

As a result, the Court concludes that Defendants met their burden to demonstrate that complaint arises from “an act…in furtherance of [Defendants’] right of petition or free speech” thereby shifting the burden to Plaintiff to establish “that there is a probability that [he] will prevail on the claim.” (CCP § 425.16(b)(1).)

Second Prong-Probability of Prevailing

To meet his burden, Plaintiff must “demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.” (Premier Med. Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476.)

Plaintiff has not met his burden. As it relates to the second and third causes of action for fraud and negligent misrepresentation, these claims are deficient as pled. The elements of fraud “are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

When pleading a claim for fraud/negligent misrepresentation, each and every element must be alleged, “and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” ( Stansfield v Starkey (1990) 220 Cal.App.3d 59, 73; Cadlo v Owens-Illinois, lnc. (2004) 125 Cal.App.4th 513,519 (stating that “[e]ach element in a cause of action for fraud or negligent misrepresentation must be factually and specifically alleged”). To satisfy the particularity requirement, the plaintiff must plead facts which “show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield, supra, 220 Cal.App.3d at p. 74; see also Lazar v Superior Court (1996) 14 Cal.4th 631, 645.) Also, when asserting a fraud /negligent misrepresentation claim against an entity, plaintiff must “‘allege the names of the persons who made the allegedly fraudulent misrepresentation, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.'” Lazar, supra, 12 Cal.4th at p. 645 (quoting Tarmann v State Farm Mut Auto Ins Co (1991) 2 Cal.App.4th 153, 157).

With respect to the second and third causes of action for fraud and negligent misrepresentation, neither cause of action contains any allegation that Defendants made any representation to Plaintiff. Instead, Plaintiff alleged that Defendants made the misrepresentations to the City. (Comp. ¶¶ 23-28, Exhs. D, E.) Plaintiff also alleges that none of the communications between Defendants and the City was ever communicated to Plaintiff. (Id. ¶ 24.) In addition, there are no allegations that Plaintiff took any action in reliance on any purported misrepresentation. Rather, the complaint

alleges that the City relied on the representations. (Comp. ¶¶ 52, 61.)

Plaintiff purports to incorporate his opposition to Defendants’ concurrent demurrer into his opposition to the instant anti-SLAPP motion. This is inappropriate and has made the Court’s review of the instant motion unnecessarily burdensome. In any event, Plaintiff argued in opposition to the demurrer that Defendants’ representations are actionable because they were made to the City which was his agent. Plaintiff argues that City was acting as his agent in transferring the Conservation Rights from Plaintiff to Pulte’s subdivisions. Tellingly, however, Plaintiff fails to cite a specific allegation in the complaint which alleges that City was his agent. As noted by Defendants in reply, Plaintiff does not make any such allegation that the City was acting as Plaintiff’s agent with respect to the matters set forth in the complaint. Plaintiff’s arguments and citation to authority discussing fraud causes of action where the misrepresentation was made to a plaintiff’s agent are irrelevant given the absence of any such allegations in the complaint that the City was acting as his agent. While Plaintiff does not directly state as much in his opposition, to the extent that he contends that it can be inferred from the complaint that the City was his agent, the Court disagrees. As stated above, causes of action for fraud/negligent misrepresentation must be pled with specificity. ( Stansfield, supra, 220 Cal.App.3d at 73.) The Court is aware that the complaint references a grant deed recorded by Plaintiff describing his conservation rights and that the deed authorized the City to transfer the rights to Pulte upon receiving written consent of Plaintiff. (Comp. ¶ 14, Exh. B at ¶ 7.) But this does not constitute an allegation that the City was Plaintiff’s agent. Plaintiff is correct that agency may be implied from the circumstances and conduct of the parties. (Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1579.) But again, there is no agency allegation in the complaint and one will not be inferred. “The law indulges in no presumption that an agency exists but instead presumes that a person is acting for himself and not as the agent for another.” (K. King & G. Schuler Corp. v. King (1968) 259 Cal.App.2d 383, 393 [disapproved on other grounds in Liodas v. Sahadi (1977) 19 Cal.3d 278].) The Court would also note that “[w]hether a person performing work for another is an agent…depends primarily upon whether the one for whom the work is done has the legal right to control the activities of the alleged agent.” (Malloy v. Fong (1951) 37 Cal.2d 356, 370.) Nothing in the complaint reflects any ability of Plaintiff to control the City’s activities.

Further, even if there was an allegation of agency, Plaintiff only alleges that the City relied on any representation. There is no allegation or any evidence of Plaintiff’s reliance. Indeed, even if the misrepresentation was not made directly to Plaintiff he must still show justifiable reliance. (Hasso v. Hapke (2014) 227 Cal.App.4th 107, 131-132.)

The Court concludes that Plaintiff’s complaint fails to state a cause of action for fraud or negligent misrepresentation. As indicated above, to meet his burden, Plaintiff must show that the complaint was legally sufficient in addition to making a prima facie showing of facts. (Premier Med. Management Systems, Inc., supra, 136 Cal.App.4th at 476.)

With respect to the fourth cause of action for slander of title, this cause of action is also defectively pled. The elements of a slander of title cause of action are (1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss. (Alpha & Omega Development, L.P. v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 664.) Plaintiff alleged

that Defendants’ misrepresentations/omissions led City to believe that Pulte owned the conservation rights no later than April 30, 2013 and the City recorded in its own internal records that the rights were not available for sale because they had been utilized by Pulte. (Comp. ¶¶ 66-67.) Plaintiff alleged that he was harmed because the City informed three potential buyers that 78.1 acres of the conservation rights were not available for sale and the City transferred the rights to Pulte and applied the rights to Pulte’s subdivisions. (Id. ¶ 71.) However, the complaint makes clear that the City informed Plaintiff on numerous occasions that the conservation rights were never applied to any project. (Comp. ¶ 31.) Further Pulte quitclaimed the entire 80 acres from the original option to purchase at Plaintiff’s request pursuant to the settlement agreement. (Id. ¶¶ 12, 33, H.) There is no statement, representation, or publication alleged in the complaint to the effect that Pulte had any interest in the conservation rights.

The complaint referenced two emails that Mr. Van Dam sent indicating that the City had informed him that mitigation issues had been satisfied but he could not find any documents in his files due to a decrease in personnel. (Comp. ¶¶ 25-27, Exh. D-E.)

There is also a reference to an email from Sandy Kyles to Mr. Van Dam indicating that the City was aware that it approved the project plans but that there was a follow request to obtain written confirmation from Plaintiff for proof of sale to Pulte and asking Mr. Van Dam if he had anything in his records. (Id. ¶ 28, Exh. D.) While Plaintiff alleges that Defendants made certain representations/omissions regarding the conservation rights which allegedly caused City to believe Pulte owned those rights and transferred those rights to Pulte, there is no actual allegation that Defendants ever made any specific statement to the City that it owned the conservation rights. Instead, the allegations indicate that Defendants never exercised the option to purchase the conservation rights and did not convey that information to the City.

The declarations submitted in opposition do not demonstrate that Defendants made any statement to the City that they owned the conservation rights. At most, the declaration of Taro Echiburu, a former City Planning Director, indicates that at the time of the discussions with Mr. Van Dam in 2012 and 2013, it was his understating that Pulte owned the conservation rights which Mr. Echiburu states were transferred and applied to the Zgraggen and Poppy Ridge projects. (Echiburu Decl. ¶ 12.) He states that Mr. Van Dam never disclosed that Pulte did not own the conservation rights and that if he had disclosed such information, building permits would not have issued until any ownership issues were resolved. (Id. ¶¶ 13, 14.) But there is no evidence that Defendants made any statement to the City that Pulte owned the conservation rights. At most the declaration seems to assume that it did. This appears to be premised on the fact that the settlement agreement required Pulte to exercise the option to purchase the conservation rights by December 31, 2011. But that agreement did not require Pulte to provide notice that it was not exercising the option and there is no explanation from Mr. Echiburu as to how he came to the understating that Pulte owned the conservation rights other than a purported failure by Mr. Van Dam to indicate that Pulte had not exercised the option to purchase. Certainly there is no evidence that Defendants made any such statement and there is no evidence or argument that Mr. Van Dam would be required to affirmatively indicate in 2012/2013 that Pulte did not exercise the option when the option simply expired on its own terms on December 31, 2011. There is in fact no evidence that any conservation rights were actually transferred to Pulte. While Mr. Echiburu references the emails discussed above, he does not declare that Mr. Van Dam ever made any statement to him that Pulte owned the conservation rights. Mr. Echiburu attaches a spreadsheet used by the City

Planning Department showing that 78.1 acres of the conservation rights were applied to the Pulte projects, there is no statement regarding who created this document or when it was created. Moreover, there is no recorded document reflecting the actual transfer of any of the conservation rights to Pulte. Indeed, the complaint is clear that “there was nothing filed with the County Recorder’s Office to indicate that the transfer [of conservation rights] had been made…” (Comp. ¶ 31.I.)

There is no evidence of any representation by Defendants that they had any interest in the conservation rights and no documents reflecting any transfer of rights to Pulte. Therefore, there is no evidence of any cloud on Plaintiff’s title to those rights which of course is an essential element of a slander of title cause of action. While it may be that City indicated to prospective purchasers that Plaintiff only had 1.9 acres available (rather than the full 80 acres), there is no evidence that this was the result of any statement or representation by Defendants. The Court concludes that Plaintiff has failed to demonstrate a probability of success on the fourth cause of action.

The Court would also point out that as noted above Plaintiff appears to rely on an agency theory (e.g. that City was his agent). This would further demonstrate his inability to succeed on this claim. Indeed, as recognized by Plaintiff in opposition, an element of a slander of title cause of action requires a statement to someone other than the plaintiff. (CACI 1730.) If City was his agent, as he argues, then any statements Defendants made to City regarding the conservation rights were in fact statements made to Plaintiff himself and the slander of title cause of action necessarily fails.

The Court notes that in opposition to the demurrer, Plaintiff requested leave to amend in the event any cause of action was defective. While the request was not made in connection with the anti-SLAPP motion, generally, once an anti-SLAPP motion is filed, a plaintiff cannot avoid the motion by amending his complaint prior to the hearing date. (Sylmar Air Conditioning v. Pueblo Contracting Svcs. Inc., (2004) 122 Cal App. 4th 1049, 1055.) If the anti-Slapp is granted, as is the case here, the Court may not grant leave to amend to allege or omit facts demonstrating the complaint is not subject to the anti-Slapp statute. (Simmons v. Allstate (2001) 92 Cal. App. 4th 1068, 1073 [“Allowing a SLAPP plaintiff leave to amend the complaint once the court finds the prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from [Code of Civil Procedure] section 425.16’s quick dismissal remedy. Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend.”]; Schaffer v. City and County of San Francisco (2008) 168 Cal. App. 4th 992, 1005.) Nor may plaintiff amend the complaint before the hearing on the anti-Slapp motion. Salma v. Capon, (2008) 161 Cal. App. 4th 1275, 1280. Indeed, the Simmons court has noted that “the anti-SLAPP statute makes no provision for amending the complaint once the court finds the requisite connection to First Amendment speech. … [W]e reject the notion that such a right should be implied.” (Simmons, supra, at p.1073.) “We conclude the omission of any provision in section 425.16 for leave to amend a SLAPP complaint was not the product of inadvertence or oversight. Accordingly, we refuse [the plaintiff’s] invitation to read into section 425.16 an implied right of leave to amend. On the contrary, we believe that granting leave to amend the complaint after the court finds the defendant had established its prima facie case would be jamming a procedural square peg into a

statutory round hole.” (Id. at p. 1074.)

Defendants have shown that the second, third and fourth causes of action arise from an act “in furtherance of [its] right of petition or free speech” and Plaintiff failed to establish “that there is a probability that [he] will prevail on the claim.” The motion to strike pursuant to CCP § 425.16 is granted.

Given the above, the Court need not address Plaintiff’s argument that Defendants cannot rely upon Civil Code § 47(b) in determining whether he established a probability of success. Interestingly, the Court notes that Defendants did not rely upon

§ 47(b) in connection with the second prong [but they did address it in the related demurrer]. Had they done so, § 47(b) arguably would have been an additional basis to conclude that Plaintiff cannot demonstrate a probability of success. Any analysis as to whether the causes of action are barred by Civil Code § 47(b) because they are based on communications made in the context of an official proceeding is essentially identical to the analysis above that the causes of action were subject to CCP § 425.16(e)(1),

(2). Section 47 bars all tort claims (save malicious prosecution) premised on protected communications including fraud and slander of title. (Albertson v. Raboff (1956) 46 Cal.2d 375, 378-379.)

Defendants’ evidentiary objections are ruled upon as follows:

Taro Echibury Declaration: Objections 3, 4, 6, and 9 are sustained. The remainder are overruled.

Joseph Mohamed, Sr.’s Declaration: Objection 6 sustained. The remainder are overruled.

John Cassinat Declaration: Objection 1, 3 and 4 are sustained. The remainder are overruled.

The Court notes that even if all of the objections were overruled, the result of the instant motion does not change.

Defendants may seek fees pursuant to CCP § 425.16(c)(1) by way of a separately noticed motion.

Defendant shall prepare for the court’s signature an order pursuant to CRC rule 3.1312.