Filed 7/3/24 Detamore v. Jain CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JASON A. DETAMORE et al.,

Plaintiffs and Appellants,

v.

SURESH C. JAIN et al.

Defendants and Respondents.

 B319504

 (Los Angeles County

 Super. Ct. No. 18SMCV00120)

APPEAL from an order of the Superior Court of Los 

Angeles County, Mark A. Young, Judge. Affirmed.

Fisher, Klein & Wolfe, David R. Fisher, Tom N. Yacko; 

Jason A. Detamore and Lisa M. Detamore, in prop. per., for 

Plaintiffs and Appellants.

One LLP, Peter R. Afrasiabi; Law Office of Kathryn M. 

Davis, Kathryn M. Davis for Defendants and Respondents.

___________________________________
2

In prior litigation among some dozen parties operating 

cannabis dispensaries, the parties entered into a settlement 

agreement wherein most of them agreed to go their separate 

ways and operate separate dispensaries.

On one side stood Jason and Lisa Detamore, the owners 

and principals of Advanced Pain Solutions, Inc., a cannabis 

dispensary business (collectively Detamore) operated at 12320 W. 

Pico Boulevard in Los Angeles (12320 Pico).

On another side stood Devon Wheeler, the Detamore’s 

partner, who leased 12320 Pico from parties on yet a third side of 

the dispute, Suresh C. Jain, the Suresh & Usha Jain Living Trust 

2003, and Pico 12300, LLC. (Jain, the trust, and the LLC are 

collectively “Jain.”)

In simplified terms, the settlement agreement obligated 

Wheeler to cede his interest in Advanced Pain Solutions to 

Detamore and transfer any partnership assets he still possessed. 

Detamore understood it would continue operating a dispensary at 

12320 Pico, without Wheeler.

Upending Detamore’s expectation, Jain evicted Wheeler, 

whose name was still on the lease, effectively evicting the 

dispensary and Detamore. Jain then immediately re-let the 

premises to Wheeler, who opened his own, competing dispensary.

Detamore sued Jain for conspiracy to fraudulently induce

the settlement agreement, arguing Jain and Wheeler colluded to 

oust Detamore from 12320 Pico.

Jain moved to strike the conspiracy cause of action as a 

strategic lawsuit against public participation (SLAPP), arguing 

its affirmative defenses rendered Detamore unlikely to prevail.

The court granted the motion on a different ground: 

Detamore could not likely prevail because nothing in the 

settlement agreement, to which Jain was not a party, conveyed 
3

any leasehold rights to Detamore. Therefore, Jain did nothing 

wrong in evicting Detamore.

We conclude Detamore failed to establish a reasonable 

likelihood of prevailing because it offered no evidence suggesting 

that Jain and the settling parties colluded to induce Detamore to 

enter into the settlement agreement. Therefore, we affirm the 

order granting defendants’ anti-SLAPP motion.

BACKGROUND

We take the facts from the third amended complaint. 

A. Underlying Partnerships, Litigation, and Settlement

1. Partnerships

Detamore operated “Grace Medical,” a cannabis dispensary,

at 12320 Pico.

Wheeler partnered with Detamore to operate the 

dispensary. 

Wheeler (not Detamore) leased 12320 Pico from Jain, its 

owner. 

The lease between Jain and Wheeler provided that Wheeler 

could not “assign [or] transfer” 12320 Pico without Jain’s prior 

written consent. Despite never giving this consent, Jain accepted 

rent from Detamore, a nonparty to the lease.

Lawrence Epstein owned Marina Caregivers, Inc., which 

supplied cannabis products to dispensaries. (Epstein and Marina 

Caregivers are collectively referred to as the Supplier 

Defendants.) 

In 2013, Detamore, Wheeler, and Epstein formed a 

partnership to operate Marina Caregivers. 

Also in 2013, Advanced Pain Solutions entered into a joint 

venture agreement with Herbalcure Corp. to operate a medical 
4

marijuana retail dispensary in Los Angeles.1 Herbalcure is not 

directly relevant to this appeal but as will be seen, the joint 

venture agreement between Advanced Pain Solutions and 

Herbalcure is relevant.

Neither the agreement between Advanced Pain Solutions 

and Wheeler nor the one between Advanced Pain Solutions and 

Herbalcure obligated any party to contribute an interest in real 

property to the venture, including any existing leasehold.

2. Litigation and Settlement

a. Litigation

In June 2016, Detamore sued Wheeler and Jain for breach 

of the partnership agreement between Detamore and Wheeler 

concerning operation of Grace Medical at 12320 Pico (the Grace 

action).

In August 2016, Detamore sued Wheeler and the Supplier 

Defendants regarding the operation of Marina Caregivers (the 

Marina action). (Detamore named other defendants as well, but 

they settled and are not part of this appeal.)

b. Settlement

In September 2016, Wheeler and the Supplier Defendants

settled Detamore’s claims against them in both the Grace and 

Marina actions.

Pursuant to the settlement agreement, Detamore ceded 

outside business interests to Wheeler, who disclaimed any right 

to Grace Medical, which continued to operate at 12320 Pico.

1

An arbitrator ultimately found the Advanced Pain 

Solutions/Herbalcure joint venture agreement to be invalid. 

(Herbalcure Corp. et al. v. Detamore (May 18, 2020, B290873, 

B291497) [nonpub. opn.].)
5

Wheeler agreed to transfer all partnership assets to 

Detamore, specifically: (1) Wheeler’s interest in Advanced Pain 

Solutions; (2) his interest in the Advanced Pain Solutions/ 

Herbalcure joint venture; (3) his right to operate Grace Medical; 

and (4) any assets Detamore “may be entitled to” under either of

the partnership agreements, i.e., the agreement between 

Advanced Pain Solutions and Wheeler or that between Advanced 

Pain Solutions and Herbalcure.

In return, Detamore agreed to dismiss the Marina action

altogether and to dismiss Wheeler from the Grace action.

The settlement agreement also provided that Detamore 

would indemnify Wheeler, whose name was still on the 12320 

Pico lease (with Jain as the landlord), for all rents and liabilities

arising from Detamore’s operation of Grace Medical on the 

premises.

The settlement agreement contained no mention of an 

obligation to transfer the lease, nor any express mention of 

Wheeler ceding possession of 12320 Pico to Detamore, although 

the parties agreed Detamore would operate Grace Medical there.

Detamore thereafter dismissed the Marina action and 

dismissed Wheeler from the Grace action, leaving Jain as the last 

defendant standing in the Grace action.

Jain was not a party to the settlement agreement.

B. Grace Medical’s Eviction and Wheeler’s 

Reinstallment at 12320 Pico

According to Detamore’s third amended complaint, Wheeler 

had no intention of fulfilling his obligations.

Detamore alleged that on September 20, 2016, Jain and the 

Supplier Defendants conspired with Wheeler to fraudulently 

enter into the 2016 settlement agreement, planning that Wheeler 

would renege on his promise to allow Detamore to operate Grace 

Medical at 12320 Pico.
6

To further this conspiracy, after the Marina litigation 

settled and the Grace litigation partially settled, Jain, in 

collusion with Wheeler, filed a sham unlawful detainer action 

against Wheeler, alleging Detamore was illegally operating a 

dispensary at 12320 Pico without a license. Wheeler immediately 

capitulated in that action and signed a stipulated judgment. 

To forestall eviction, on November 16, 2016, Detamore filed 

a prejudgment claim for possession of 12320 Pico and sought ex 

parte relief, alleging a rental agreement existed between 

Detamore and the landlord. Contending Wheeler and Jain 

conspired to wrongfully deprive Detamore of its interest in the 

lease and the subject premises and oust it from the dispensary 

business it had operated since 2009, Detamore challenged the 

stipulated judgment on grounds that Detamore, not Wheeler, was 

the tenant-in-possession and was thus the only entity having

standing to stipulate to any unlawful detainer judgment. 

The trial court denied Detamore’s possession claim, entered 

judgment for Jain, and issued a writ of possession. Detamore did 

not appeal this ruling.

On January 8, 2017, Jain evicted Wheeler (and thus Grace 

Medical and Detamore) from 12320 Pico. The next day, Jain relet the premises to Wheeler (through his half brother, Gabriel 

Dezio), and Wheeler opened a new dispensary, ERBA. 

C. Instant Litigation

1. Complaint

Detamore sued Jain and the Supplier Defendants for 

interference with prospective economic relations and conspiracy 

to commit fraud in the inducement of the 2016 settlement 

agreement that resolved the Marina action and partially resolved 

the Grace action. After extensive law and motion practice, 

including an appeal, the third amended complaint is operative.
7

In it, Detamore alleged that defendants and Wheeler 

formed a conspiracy before the 2016 settlement in furtherance of 

which Wheeler would perform none of his settlement obligations 

but nevertheless reap the settlement benefits. 

Detamore alleged: 

1. “As memorialized in the Settlement Agreement, all 

parties agreed that the Detamores would own and operate the 

cannabis business at the location of Grace Medical, the original 

dispensary, located at 12320 Pico Blvd., to the exclusion of 

Wheeler.” 

2. “Prior to the execution of the Settlement Agreement, 

Defendants and Wheeler agreed not to perform under the 

Settlement Agreement.” 

3. “Defendants and Wheeler intended to induce Plaintiffs 

into the Settlement Agreement by the misrepresentations made 

therein with respect to their intention to perform.” 

4. “After the Settlement was executed, Wheeler failed to 

perform his obligations under the Settlement Agreement[,] as 

Defendants intended, and moved back into 12320 Pico Blvd.[,] 

where he operated the Illegal Dispensary [ERBA], servicing 

Plaintiffs’ customers, notwithstanding the contrary commitments 

of the parties in the Settlement Agreement.” 

5. “In furtherance of Wheeler’s breach of the Settlement 

Agreement, Defendants gave substantial assistance to Wheeler to 

take over Plaintiffs’ business including, but not limited to, the 

following: 1) the Defendant Landlords overlooked Wheeler’s lack 

of license, and they re-let the property to Wheeler through his 

brother, notwithstanding their duties to Plaintiffs; and 2) the 

Defendant Suppliers also assisted Wheeler by restocking the 

location of ERBA, the Illegal Dispensary, notwithstanding their 

obligations to Plaintiffs at that location.” 
8

In sum, Detamore alleged defendants and Wheeler 

intended to induce Detamore to enter into the settlement 

agreement by misrepresenting Wheeler’s intention to 

“relinquish[] all rights to operate the marijuana dispensary” at 

12320 Pico, and defendants wrongfully interfered with 

Detamore’s contractual rights by permitting Wheeler to resume 

occupation and operate a dispensary at the premises under 

Dezio’s name. 

2. Anti-SLAPP Motion

Jain and the Supplier Defendants specifically moved to 

strike the eighth cause of action: conspiracy to commit fraud in 

inducement of the 2016 settlement agreement, arguing the 

agreement constituted a “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,” and the cause of action thus arose 

from acts in furtherance of Jain’s petition rights. (Code Civ.

Proc., § 425.16, subd. (e)(1).)2 Defendants argued Detamore could 

not prevail on the cause of action because the action was barred 

by the litigation privilege and the applicable limitations period, 

and Detamore could not establish reasonable reliance.

In opposition to the motion, Detamore made three 

arguments. First, Detamore argued defendants failed to show its 

alleged actions arose from protected activity because they failed 

to provide any evidence Jain was involved in the 2016 settlement 

agreement or, as a nonparty thereto, could have engaged in

protected activity. Detamore argued that the Supplier 

Defendants engaged in non protected activity because they were 

2 Undesignated statutory references will be to the Code of 

Civil Procedure.
9

mere signatories to the agreement, with no obligations 

thereunder.

Second, Detamore argued it would likely prevail on the 

merits because its cause of action for conspiracy to defraud was 

adequately pleaded.

Finally, Detamore argued it would likely prevail on the 

merits because the settlement agreement obligated Wheeler to 

cede occupancy of 12320 Pico to Detamore.

Detamore supported its arguments with the settlement 

agreement, Jason Detamore’s declaration interpreting the 

agreement, and the stipulated unlawful detainer judgment

against Wheeler. 

In a tentative ruling, the trial court found that Detamore’s 

eighth cause of action for conspiracy for fraud in the inducement 

sought to impose liability on Jain and the Supplier Defendants 

for protected conduct, specifically a misrepresentation intended 

to induce a litigation settlement.

However, the court found in its tentative ruling that 

Detamore failed to adduce any evidence that Jain knew of the 

settlement agreement, induced Wheeler to breach the agreement, 

or made any misrepresentation to Detamore. The court found 

that Detamore failed to establish even that Wheeler agreed to 

cede occupancy of 12320 Pico to Detamore. The court said, 

“[T]here seems to be a disconnect between what Plaintiffs 

believed was owed to them under the terms of the settlement 

agreement and what the settlement agreement actually states. . . 

. The Court does not find any terms in the agreement giving 

Plaintiffs physical possession of the property. . . . [¶] . . . 

[Settlement] language does not appear to require Defendant 

Wheeler to do anything or to transfer the property to Plaintiffs. 

Moreover, Plaintiffs have not argued that . . . Wheeler’s lease was 

to be transferred to Plaintiffs.” 
10

On January 27, 2022, after a hearing on the motion, the 

court found that Detamore failed to show its claim had probable 

merit. The court adopted its tentative ruling and granted 

defendants’ anti-SLAPP motion. 

3. Motion for Reconsideration

Detamore moved for reconsideration under section 1008. 

On March 11, 2022, Detamore sought ex parte relief advancing 

the hearing on its reconsideration motion, which the court

denied.

On March 16, 2022, Detamore appealed the denial of its ex 

parte application. It ultimately withdrew the reconsideration 

motion altogether.

4. New Trial Motion

On February 28, 2022, 32 days after the anti-SLAPP order 

was entered and served, Detamore moved for “new trial” on the 

grounds of improper notice, discovery of new evidence, and 

insufficiency of evidence supporting the judgment. It argued it 

lacked notice that the court would examine whether the 

settlement agreement required transferring possession of 12320 

Pico. In support of the motion, Detamore offered a presettlement declaration by Wheeler in other litigation between the 

parties stating that the 12320 Pico lease was “the lease pursuant 

to which the Joint Venture continues to operate.” 

The court held a hearing on Detamore’s new trial motion on 

April 20, 2022, 83 days after the anti-SLAPP order was entered

and 45 days after Detamore had appealed the court’s denial of its 

ex parte application to advance its section 1008 motion. 

The court found no surprise existed because to prove the 

likelihood of success Detamore always had the burden of proving 

up its prima facie case, which required evidence supporting its 

right to possess 12320 Pico. It had every opportunity to do so, the 
11

court found, but failed to do so until after the hearing. Therefore, 

the court denied Detamore’s motion for new trial.

Detamore appeals.

DISCUSSION

Detamore contends the trial court erred in (1) finding 

defendants’ conspiracy arose from protected activity, (2) finding 

Detamore failed to establish a probability of prevailing on the 

merits, and (3) denying Detamore’s motion for a new trial. We 

disagree.

A. Applicable Law

1. Anti-SLAPP Procedure

The “anti-SLAPP statute is designed to protect defendants 

from meritless lawsuits that might chill the exercise of their 

rights to speak and petition on matters of public concern.” 

(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883-

884.) Thus, 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).)

In evaluating an anti-SLAPP motion, courts conduct a twostep analysis. First, the court decides whether a defendant has 

met its “burden of establishing that the challenged allegations or 

claims ‘aris[e] from’ protected activity in which the defendant has 

engaged.” (Park v. Board of Trustees of California State

University (2017) 2 Cal.5th 1057, 1061 (Park).) For these 

purposes, protected activity “includes: (1) any written or oral 

statement or writing made before a legislative, executive, or 

judicial proceeding, or any other official proceeding authorized by 
12

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).)

Second, if a defendant meets its burden on the threshold 

showing, the court decides if the plaintiff “has established that 

there is a probability that the plaintiff will prevail on the claim.” 

(§ 425.16, subd. (b)(1).) To satisfy this burden, the 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 if the evidence submitted by the 

plaintiff is credited.’ ” (Soukup v. Law Offices of Herbert Hafif

(2006) 39 Cal.4th 260, 291.) At this stage of the proceedings, a 

plaintiff “need only establish that his or her claim has ‘minimal 

merit.’ ” (Ibid.) Although “ ‘the court does not weigh the 

credibility or comparative probative strength of competing 

evidence, it should grant the motion if, as a matter of law, the 

defendant’s evidence supporting the motion defeats the plaintiff’s 

attempt to establish evidentiary support for the claim.’ ” (Ibid.) 

“In making its determination, the court shall consider the 

pleadings, and supporting and opposing affidavits stating the 

facts upon which the liability or defense is based.” (§ 425.16, 

subd. (b)(2).)
13

A plaintiff cannot rely solely on the allegations of the 

complaint but must produce evidence that is admissible at trial. 

(HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 

204, 212.) If the plaintiff fails to do so, the motion to strike is 

granted. (Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 

780.)

Further, “[a]nalysis of an anti-SLAPP motion is not 

confined to evaluating whether an entire cause of action, as 

pleaded by the plaintiff, arises from protected activity or has 

merit. Instead, courts should analyze each claim for relief —

each act or set of acts supplying a basis for relief, of which there 

may be several in a single pleaded cause of action — to determine 

whether the acts are protected and, if so, whether the claim they 

give rise to has the requisite degree of merit to survive the 

motion.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 

995, 1010.) “[T]o the extent any acts are unprotected, the claims 

based on those acts will survive.” (Id. at p. 1012.)

We review a trial court’s order granting an anti-SLAPP 

motion de novo, applying that same two-step analysis. (Oasis 

West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) We 

independently review whether a moving party has made a 

threshold showing that the challenged cause of action arises from 

protected activity. (Grewal v. Jammu (2011) 191 Cal.App.4th 

977, 988.)

2. Fraud and Conspiracy

“The elements of promissory fraud (i.e., of fraud or deceit 

based on a promise made without any intention of performing it) 

are: (1) a promise made regarding a material fact without any 

intention of performing it; (2) the existence of the intent not to 

perform at the time the promise was made; (3) intent to deceive 

or induce the promisee to enter into a transaction; (4) reasonable 
14

reliance by the promisee; (5) nonperformance by the party 

making the promise; and (6) resulting damage to the promisee.” 

(Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 

1443, 1453.)

“The elements of a civil conspiracy are (1) the formation of 

a group of two or more persons who agreed to a common plan or 

design to commit a tortious act; (2) a wrongful act committed 

pursuant to the agreement; and (3) resulting damages.” (City of 

Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 212.) 

Civil conspiracy is not an independent tort, but “a legal doctrine 

that imposes liability on persons who, although not actually 

committing a tort themselves, share with the immediate 

tortfeasors a common plan or design in its perpetration.

[Citation.] By participation in a civil conspiracy, a coconspirator 

effectively adopts as his or her own the torts of other 

coconspirators within the ambit of the conspiracy. [Citation.] In 

this way, a coconspirator incurs tort liability co-equal with the 

immediate tortfeasors.” (Id. at pp. 211-212.)

B. Application

1. Defendants’ Alleged Conduct Arose from 

Protected Activity

As to the first prong of the anti-SLAPP analysis, Detamore 

acknowledges that a settlement agreement constitutes protected 

activity as to the settling parties (see Cheveldave v. Tri Palms 

Unified Owners Assn. (2018) 27 Cal.App.5th 1202, 1213), but 

argues sans authority that the same is not true as to nonparty 

conspirators such as Jain, nor to mere signatories to the 

settlement, such as the Supplier Defendants, who have no 

performance obligations thereunder. We disagree.

“Courts ‘have adopted a fairly expansive view of what 

constitutes litigation-related activities within the scope of section 

425.16.’ [Citation.] A settlement agreement executed in the 
15

context of active litigation is ‘made in connection with an issue 

under consideration or review by a . . . judicial body.’ ” (O&C 

Creditors Group, LLC v. Stephens & Stephens XII, LLC (2019) 42 

Cal.App.5th 546, 566.) When a challenged cause of action is 

founded upon and would not exist in the absence of protected 

settlement activity, the cause of action arises from and is based 

on the settlement agreement, making it subject to the provisions 

of the anti-SLAPP statute even where the defendant is not party 

to the agreement. (Id. at p. 567 [when a nonparty to a settlement 

agreement is alleged to have committed a tort respecting the 

settlement, the nonparty’s actions arise from petitioning 

activity].)

Here, Detamore alleged that defendants conspired with 

Wheeler to corrupt the Grace and Marina litigation settlement. 

In thus unifying the parties to allege conspiracy, Detamore 

cannot separate them to avoid the anti-SLAPP statute. (See 

Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1420 

[attorney’s negotiation of stipulated settlement in unlawful 

detainer action was protected conduct].)

2. Detamore Offered No Evidence Suggesting 

Probable Merit

As to the second prong, Detamore argues its claims have 

probable merit because the 2016 settlement agreement gave 

Detamore the right to possess 12320 Pico, if not expressly then at 

least as a matter of reasonable inference. This is so, Detamore 

argues, because (1) the agreement acknowledged that Wheeler 

ceded all Advanced Pain Solutions assets to Detamore, and 

possession of 12320 Pico was an indispensable asset; (2) the 

agreement’s indemnity provision obligated Detamore to 

indemnify Wheeler for rent he paid to Jain, which Detamore 

would not have to do if it was not occupying the premises; (3)

after the settlement, Detamore took over the property and began 
16

paying rent to Jain, which Jain accepted; (4) Jain alleged in its 

unlawful detainer action not that Detamore had no right to 

possession but that it had no license to sell marijuana; and (5) 

Jain failed to challenge Detamore’s claim of possession in its antiSLAPP motion. Detamore adduces as evidence of these facts the 

declaration of Jason Detamore about the meaning of the 

settlement agreement, arguing the court was required to accept 

the declaration as true for anti-SLAPP purposes.

To satisfy its burden on the second prong, Detamore was 

obligated to produce evidence both of Wheeler’s promissory

fraud—e.g., a promise, lack of intention to perform, intent to 

deceive, and nonperformance—and defendants’ participation in a 

conspiracy—e.g., agreement between two or more persons on a 

common plan to commit a tortious act and a wrongful act 

committed pursuant to the agreement.

Detamore produced no evidence supporting any of these 

elements.

a. Promise

We must first identify exactly what Wheeler is alleged to 

have promised Detamore in the settlement agreement. 

(1) There was no Promise of Occupancy

Detamore alleged “Defendants and Wheeler intended to 

induce Plaintiffs into the Settlement Agreement by the 

misrepresentations made therein with respect to their intention to 

perform.” (Emphasis added.) Perform what? Wheeler’s only 

obligation under the settlement agreement was to transfer 

specified rights and assets to Detamore. The only asset contested 

here is the 12320 Pico lease.

But the settlement agreement did not identify the lease as 

a partnership asset and said nothing about Detamore taking it 

over.
17

Detamore argues the settlement agreement gave Detamore 

the right to possess 12320 Pico. This right was implied, 

Detamore argues, by the facts that: The agreement obligated 

Detamore to indemnify Wheeler for rent he paid to Jain, which 

Detamore would not have to do if it did not occupy the premises; 

Detamore took over the property and began paying rent to Jain, 

which Jain accepted; Jain alleged in its unlawful detainer action 

not that Detamore had no right to possession but that it had no 

license to sell marijuana; and Jain failed to challenge Detamore’s 

claim of possession in its anti-SLAPP motion. 

None of these circumstances implies a right to occupy 

12320 Pico. First, Detamore knew Wheeler had no authority to 

grant such a right, as his lease agreement with Jain expressly 

forbade transferring the property to a third party without Jain’s 

written consent, which was never given. Second, that Detamore 

paid rent to Jain indicated only that Jain allowed Detamore’s 

occupancy, i.e., agreed to waive the lease’s nontransferability 

clause, not that Detamore had a right to occupy the premises. 

Any such right arose only from Detamore’s informal arrangement 

with Jain, and extended only so far as Jain and our unlawful 

detainer law permitted. Third, given that Jain ultimately evicted 

Detamore, it seems clear that it granted Detamore no lasting 

right to possess the premises. Finally, that an attorney fails to 

make a particular argument during litigation does not suggest 

the parties agreed to implied but unstated contract terms years 

earlier.

(2) There was no “Agreement” Promise

Promissory deceit is “A promise, made without any 

intention of performing it.” (Civ. Code, § 1710.) Detamore argues 

the pertinent promise here was that Wheeler “agreed” Detamore 
18

would operate Grace Medical at 12320 Pico. (We assume 

Detamore means not that Wheeler promised to agree to 

Detamore’s occupancy of 12320 Pico but to allow it, or at least to 

do nothing to interfere with the occupancy.) As noted above, 

Detamore alleged, “As memorialized in the Settlement 

Agreement, all parties agreed that the Detamores would own and 

operate the cannabis business at the location of Grace Medical, 

the original dispensary, located at 12320 Pico Blvd. to the 

exclusion of Wheeler.” 

But Detamore knew Wheeler had no power to control Jain’s 

administration of the lease. “ ‘[P]redictions as to future events, or 

statements as to future action by some third party, are deemed 

opinions, and not actionable fraud.’ ” (Nissan Motor Acceptance 

Cases (2021) 63 Cal.App.5th 793, 823.) Therefore, the pertinent 

promise could only be Wheeler’s promise not to interfere with 

Detamore’s occupancy of 12320 Pico.

b. Wheeler’s Lack of Intent to Perform; 

Jain’s Agreement with Wheeler to Deceive

Detamore

As to this promise—Wheeler’s promise not to interfere with 

Detamore’s occupancy—Detamore identified no evidence that 

Wheeler intended not to perform on that promise, that Jain 

agreed with Wheeler to commit a tortious act, or that Jain 

committed any wrongful act. 

The only evidence on these points was Detamore’s 

speculation about the sequence of events as they unfolded after 

the settlement: Detamore occupied 12320 Pico for only a few 

months, after which Jain evicted Detamore, ostensibly for 

operating without a license, then re-let the property to Wheeler, 

who also had no license. But mere breach of a contract does not 
19

establish a prior intention on Wheeler’s part not to perform his 

obligations under the Grace/Marina settlement. 

Moreover, nothing about this sequence of events ties Jain 

to the Grace/Marina settlement negotiations in the first instance 

or suggests Jain had any arrangement with any defendant 

relating to the settlement. Nor does any evidence suggest Jain 

wronged Detamore by evicting Wheeler and reletting the 

premises to him through his brother.

c. Conclusion

Detamore adduced no evidence suggesting a reasonable 

probability of prevailing at trial on its cause of action for 

conspiracy to defraud. Therefore, the court properly granted 

defendants’ special motion to strike the eighth cause of action.

C. New Trial

Detamore argues it was unfairly surprised by the trial 

court’s decision to interpret the settlement agreement as 

conveying no leasehold or possessory interest in 12320 Pico, as 

defendants did not make that argument in their anti-SLAPP 

motion. It argues that Wheeler’s declaration that the settlement 

agreement conveyed a leasehold interest to Detamore constituted 

new evidence justifying a new trial, and the trial court’s refusal 

to consider the declaration rendered its ruling unsupported by 

substantial evidence. On these three bases, Detamore argues the 

court should have granted its motion for a new trial. We 

disagree.

Section 657 governs motions for new trial, and provides, in 

pertinent part: “The verdict may be vacated, and any other 

decision may be modified or vacated, in whole or in part, and a 

new or further trial granted on all or part of the issues, on the 

application of the party aggrieved, for any of the following causes, 
20

materially affecting the substantial rights of such party: [¶] . . . 

[¶] . . . Accident or surprise, which ordinary prudence could not 

have guarded against[;] . . . [¶] . . . Newly discovered evidence, 

material for the party making the application, which he could 

not, with reasonable diligence, have discovered and produced at 

the trial[;] [¶] . . . [¶] . . . [and] [i]nsufficiency of the evidence to 

justify the verdict or other decision, or the verdict or other 

decision is against law.”

Detamore moved for new trial under these provisions, 

arguing that the court’s ruling on the anti-SLAPP motion raised 

a new material issue addressing a concern not raised by the 

parties (right to possession of the subject property), and therefore 

constituted surprise, which deprived Detamore of the opportunity 

to fully brief the issue of possession with, among other things, 

Wheeler’s declaration. Detamore also argued that given the 

court’s surprise sua sponte finding on the issue of possession, the 

court should have permitted Detamore to introduce parol 

evidence such as Wheeler’s declaration to clarify any ambiguity 

in the settlement agreement found by the court. 

We have discovered only one published case applying the 

new trial procedure to an anti-SLAPP ruling, and in that case the 

ruling disposed of the entire case, not merely one cause of action, 

as here. (Aron v. WIB Holdings (2018) 21 Cal.App.5th 1069.) 

But for present purposes we will assume a new trial may be had 

when a special motion to strike results in the removal of one of 

several causes of action. We will also, for argument’s sake, 

overlook the procedural infirmities of Detamore’s motion.

Cutting to the chase, we conclude first that Detamore’s 

burden under the second prong of the anti-SLAPP analysis was 

always to demonstrate a reasonable probability of prevailing on 
21

the merits, which it could hardly do without first establishing its 

right to at least occupy 12320 Pico. That defendants did not 

specifically argue lack of possessory rights in their motion did not 

relieve Detamore of the obligation to prove up its case.

Second, pursuant to the discussion above, no evidence 

Detamore offered, even in support of its motion for new trial, 

established its right to occupy 12320 Pico other than at Jain’s 

sufferance. Even were Wheeler’s declaration in other litigation 

as to the meaning of the settlement agreement probative, and 

even had Wheeler expanded substantially on Jason Detamore’s 

declaration already offered in opposition to the anti-SLAPP 

motion (which he did not), Wheeler declared only that the 12320 

Pico lease was “the lease pursuant to which the Joint Venture 

continues to operate.” That does not mean, and Wheeler did not 

say and Detamore does not claim, the settlement agreement 

transferred the lease to Detamore.

We therefore conclude: Wheeler’s declaration did not 

constitute new evidence supporting a new trial; Detamore was 

not unfairly surprised that the possession issue arose at the 

hearing; and the anti-SLAPP ruling was not based on insufficient 

evidence. Therefore, Detamore’s new trial motion was properly 

denied.

D. Conclusion

Given this result, we need not reach Jain’s arguments that 

Detamore’s claim was precluded by the applicable limitations 

period and the litigation privilege, and Detamore failed to 

establish reasonable reliance on Wheeler’s alleged fraud.
22

DISPOSITION

The order granting defendants’ special motion to strike is 

affirmed. Respondents are to recover their costs on appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.