Filed 1/23/14 First So. Capital Development v. Sheet Metal Workers’ Pension Plan etc. CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

FIRST SOUTHERN CAPITAL DEVELOPMENT CORP.,
Plaintiff and Respondent,

v.

SHEET METAL WORKERS’ PENSION PLAN OF SOUTHERN CALIFORNIA, ARIZONA AND NEVADA et al.,
Defendants and Appellants. B239824
(Los Angeles County Super. Ct. No. YC065531)

APPEAL from an order of the Superi or Court of Los Angeles County, Cary Nishimoto, Judge. Affirmed. Gilbert & Sackman, Robert A. Cantore, Stephanie J. Joseph; Willis DePasquale, Larry N. Willis, and Ste phanie N. Rachel, for De fendants and Appellants.
Law Office of Mark Mazda and Mark Mazda for Plaintiff and Respondent.

_____________ ______________2 First Southern Capital Development Corpor ation (First Southern) sued The Sheet
Metal Workers’ Pension Plan of Southern California, Arizona and Nevada (Pension Plan) for breach of contract, wrongful eviction and interference with prospective economic relations, as well as several ot her claims. The trial court de nied Pension Plan’s special motion to strike the compla int pursuant to Code of Civil Procedure section 425.16, 1 concluding First Southe rn had met its burden of demonstr ating a probability of prevailing
on the merits. Because First Southern’s clai ms do not arise from prot ected activity within the meaning of section 425.16, we affirm.
FACTUAL AND PROCED URAL BACKGROUND
1. The Lease, Asset Purchase Agreemen t and Efforts To Ascertain First Southern’s Creditworthiness Aviation Mortgage Partners, In c., a retail mortgage origin ating firm, entered into a five-year lease for space in a Manhatta n Beach building owne d by Pension Plan commencing July 1, 2009. The lease was guaranteed by Aviation Mortgage’s shareholders, Richard Thomas and Denise T homas (husband and wife). Richard was the company’s president, and Denise the senior vice president. 2 The lease provided it could not be assigned without the prior written cons ent of the landlord, “which consent shall not be unreasonably w ithheld or delayed.” 3 In the event of a merger or sale of assets, however, the lease could be assigned if ce rtain requirements were met including the provision of “detailed financial informa tion (including references) regarding the
creditworthiness and financial condition of th e proposed assignee . . . and such other

1 Statutory references are to the Code of Civil Procedure.
2 Because the Thomases share a surname, we refer to them by their first names for convenience and clarity. (See Callahan v. Gibson, Dunn & Crutcher LLP (2011) 194 Cal.App.4th 557, 561, fn. 1.)
3 The prohibition-of-assignment clause fu rther provided, “Landlord’s withholding or delaying approval w ill be deemed reasonable if it is based on: . . . (x) Landlord’s good faith analysis of the prospective assignee[’]s , sublessee’s or other transferee’s credit, character and business or professional standing.”3 information and documentation as the Landlord may require” and execution of new lease guarantees or “lease guarantor estoppel cer tificates, affirmations and agreements.” In the first quarter of 2010 First Southern agreed to purchase Aviation Mortgage’s assets, including the office lease. First Southern and Aviati on Mortgage signed an asset purchase agreement in April 2 010, and First Southern thereafter occupied the Manhattan Beach premises and made the lease paym ents. In a May 13, 2010 email Richard informed Melanie Shepherd, the building mana ger, he was in the “p rocess[] of an ‘Asset Sale’ of Aviation Mortgage” to First S outhern, but would remain the company’s president. The email stated, “I n my agreement with [First Sout hern], they have agreed to
assume our lease. Please forward a list of any documents or paperw ork you may need to
have them assume the lease.” Notwithstanding Richard’s emai l, the asset sale was in jeopardy. Correspondence
between Richard and First Sout hern executives in mid-May 2010 described the parties’ disagreement whether the Thomases had been fu lly compensated pursuant to the terms of the asset purchase agreement. Around the same time First Southern requested that Shepherd communicate directly with it to obtai n its financial information, but Shepherd
refused. 4 On June 7, 2010 Shepherd requested from Richard two years of audited
financial statements for First Southern and co mpletion of a lease application. According to Shepherd, she received the information in early August 2010 and forwarded it to Chris Sinfield, a leasing broker who had been retained to assist in evaluating First Southern’s
creditworthiness. During September and Octo ber 2010 Sinfield requested additional information from Richard, including a completed lease a pplication for Michael Jones, the majority
stockholder of First Southern. There wa s confusion among the various individuals
involved as to whether and wh en all the requested informa tion had been transmitted, but by November 10, 2010 Sinfield had reviewed First Southern’s 2009 tax return and

4 Although Pension Plan was accepting rent payments directly from First Southern, Shepherd explained she had been advised by counsel to communicate only with the lessee, Aviation Mortgage.4 concluded Pension Plan should retain a tenant risk assess ment firm. After examining the material provided about First Southern, the ri sk assessment firm determined additional
information was needed be cause of the “start-up” nature of First Southern and its lack of financial history. During November and December 2010 the firm sought additional
information from First Southe rn including its business pl an, a list of investors (and amounts invested) and key executive biographies.
2. The Unraveling of the Asset Purchase Ag reement; the Temporary Restraining Order In late December 2010 Aviation Mort gage terminated the asset purchase agreement. On December 30, 2010 Richard advise d Shepherd that Aviation Mortgage was withdrawing its request to assign the leas e and would be serving First Southern with a notice to vacate the premises. On December 31, 2010 the Th omases sent First Southern chief financial officer Emile Auguste, Jr. a letter stating there wa s no binding agreement between First Southern and Aviation Mortgage based on the concerns the Thomases had identified in May 2010. They requested a time to discuss “an amicable separation.” On the morning of Januar y 20, 2011 Richard requested Shepherd have the office suite entry doors rekeyed and after-hours ac cess cards reprogrammed to deny after-hours access for Auguste and other Firs t Southern personnel. Late r that day the police were called to the premises because of a physical altercation between Richard and Auguste. On January 21, 2011 First S outhern obtained a temporary restraining order against the Thomases enjoining them from, among other things, using the name Aviation Mortgage Partners dba Milestone Mortgage, soliciting Fi rst Southern’s employees, contacting First Southern’s clients and entering the Manhattan Beach office premises . The Thomases and their agents were also ordere d to grant access to First Southern and its employees to the Manhattan Beach premises.5 3. The Unlawful De tainer Action
Neither the Thomases nor Firs t Southern paid rent or a pro rata share of building expenses for January or February 2011. After serving notices to quit or pay rent to First Southern and the Thomases, Pension Plan filed an unlawful detainer action on February 15, 2011 naming both First Southe rn and Aviation Mortgage as defendants.
First Southern answered and a lleged as affirmative defenses breach of the covenant of quiet enjoyment, breach of the assignment provi sion of the lease and tortious interference
with First Southern’s contractual relations with the Thomases causing a breach of
contract between First Southern and Aviatio n Mortgage. Pension Plan moved in limine
to disallow First Southern ’s affirmative defenses.
At the outset of the bench trial on June 13, 2011, the court did not rule directly on the motion in limine but explained unlawful detainer actions are summary in nature, focusing on possession. After Shepherd testif ied rent had not been paid since December and gave a brief synopsis of the events leading to the reke ying of the premises, the court
found the lease had been forfeited and awarde d damages and attorney fees in the amount of $120,728.94 in favor of Pe nsion Plan. The court denied First Southern’s motion for
new trial.
4. The Complaint On September 14, 2011 First Southern f iled a verified, 88-p age complaint with 90 exhibits against Pension Plan, Shepherd and others asserting causes of action for breach of contract, breach of the implied cove nant of quiet enjoyment, wrongful eviction, negligence, breach of the implied covenant of good faith and fair dealing, civil conspiracy, negligent and intentional interfe rence with prospective economic relations,
interference with contract and business a nd declaratory relief. After laboriously describing the timeline of events, First Southe rn summarized its theory of the case: The Thomases had devised a plan to resell Aviation Mortgage to another banking firm after
First Southern’s substantial investment led to continual sales growth. The delay in approving the lease assi gnment gave the Thomases the oppor tunity to execute their plan.6 Pension Plan agreed to accommodate the Th omases so it could recapture the space and rent it at a higher rate.
5. The Trial Court’s Orders Denying Pens ion Plan’s Special Motion To Strike In January 2012 Pension Plan moved to strike the complaint pursuant to section 425.16 on the ground it arose from its protec ted activity of prosecuting the unlawful detainer action. In opposition First Southern argued the various caus es of action in the complaint arose from Pension Plan’s failure to timely approve assignment of the lease and improper actions taken by Shepherd, including rekeying the office premises, not
Pension Plan’s unlawful detainer action. Relying on the compla int and the exhibits attached to it, First Southern argued it ha d established a probab ility it would prevail on
the merits. At the conclusion of the hearing on Fe bruary 21, 2012, the trial court denied
Pension Plan’s motion to strike. The court concluded First Southern ’s causes of action arose from Pension Plan’s protected activity of filing an unlawful detainer action. The court explained, although cert ain allegations in the comp laint described unprotected activity, the protected activity (filing a laws uit) was not merely incidental to the unprotected activity and thus the causes of act ion were subject to section 425.16. The court found, however, First Southern had “s et forth numerous allegations as well as
evidence in the form of exhibits in its verified complaint to establish that it may prevail
on several different causes of action based on [First Southe rn’s] theory th at [Pension Plan] unreasonably withheld consent to th e assignment of the lease . . . .”
DISCUSSION
1. Section 425.16: The Anti-SLAPP Statute 5
Section 425.16, subdivision (b)(1), provides, “A cause of action against a person arising from any act of that person in furthe rance of the person’s ri ght of petition or free speech under the United States or Californi a Constitution in connection with a public

5 SLAPP is an acronym for “strategic la wsuit against public participation.” ( Vargas v. City of Salinas (2009) 46 Cal.4th 1, 8, fn. 1.)7 issue shall be subject to a sp ecial motion to strike, unless th e court determines that the plaintiff has established that there is a pr obability that the plaintiff will prevail on the claim.” Pursuant to subdivision (e), an “‘act in furtherance of a person’s right of petition or free speech under the United States or Ca lifornia 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 conn ection 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 or al statement or writing made in a place open to the public or a public fo rum in connection with an issue of public interest, or (4) any other cond uct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free sp eech in connection with a public issue or an issue of public interest.” In ruling on a motion under section 425.16, the trial court engages in a two-step process. “First, the court d ecides whether the defendant has made a threshold showing that the challenged cause of action is one ar ising from protected activity. The moving
defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains
were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the
United States or California Cons titution in connection with a pu blic issue,’ as defined in the statute. (§ 425.16, subd . (b)(1).) If the court finds su ch a showing has been made, it then determines whether the plaintiff has de monstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial cour t in making these determinations considers ‘the pleadings, and supporting and opposing a ffidavits stating the facts upon which the liability or defense is based.’” ( Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

a. Step one of the two-part test and mixed causes of action The moving party’s burden on the threshol d issue is to show “the challenged cause of action arises from protected activity.” ( Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; see Scalzo v. Baker (2010) 185 Cal.App.4th 91, 98.) “[T]he statutory phrase ‘cause8 of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the an ti-SLAPP context, the critical point is whether the plaintiff’s cau se of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.] ‘A defend ant meets this burden by demonstrating that the act un derlying the plaintiff’s cause [of action] fits one of the categories spelled out in section 4 25.16, subdivision (e) . . . .’” ( City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 78.) “If the defe ndant does not demonstrate this initial prong, the court should deny the anti-SLAPP motion and need not address the second step.” ( Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.Ap p.4th 1264, 1271.) When a special motion to strike pursuant to section 425.16 cha llenges a cause of action that involves both protected and nonpro tected activity (sometimes referred to as a “mixed” cause of action), “if the allegations of protected activity are only incidental to a cause of action based essentially on nonprot ected activity, the mere mention of the protected activity does not subject the caus e of action to an anti-SLAPP motion.” ( Scott v. Metabolife Internat
., Inc. (2004) 115 Cal.App.4t h 404, 415; accord, World Financial Group, Inc. v. HBW Ins. & Financial Services
, Inc. (2009) 172 Cal.App. 4th 1561, 1574.) On the other hand, if the allegations of nonprotected conduct are collateral to the substance of the cause of action, their pres ence does not prevent the court from applying the statute. As we explained in Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308, “[A] plaintiff ca nnot frustrate the purposes of the SLAPP statute through a pleading tactic of combinin g allegations of protected and nonprotected activity under the label of one ‘cause of action.’” (Accord, Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.A pp.4th 90, 103.) In applying section 425.16 to mixed causes of action, “it is the principal thrust or
gravamen of the plaintiff’s cause of action th at determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protecte d activity should not subject th e cause of action to the anti-9 SLAPP statute.” ( Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188; see Episcopal Church Cases (2009) 45 Cal.4th 467, 477-478 [“This dispute [involving ownership of property] and not any protected activity is ‘the gravamen or principal thrust’ of the action. [Citation.] The additional fact that protected activity may lurk in the background—and may explain why the rift between the parties arose in the first place—does not transform a property dis pute into a SLAPP suit.”].) That is, “the cause of action is vulnerable to a special motion to strike under the anti-SLAPP statute only if the protected conduct forms a substantia l part of the factual basis for the claim.” ( A.F. Brown Electrical Contractor, In c. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1125.) This analysis does not require an either-o r determination or mean the gravamen of a cause of action must be based only on pr otected activity or on n onprotected activity. Rather, the proper statement of the rule, as articulated in Haight Ashbury Free Clinics, Inc. v. Happening House Venture s (2010) 184 Cal.App.4th 15 39, 1551, footnote 7 is: “[W]here the defendant shows that the grav amen of a cause of action is based on nonincidental protected activity as well as non protected activity, it has satisfied the first prong of the SLAPP analysis.” (Accord, World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc., supra
, 172 Cal.App.4th at p. 1574.)
b. Step two If the defendant establishes the statute applie s, the burden shifts to the plaintiff to demonstrate a “probability” of prevailing on the claim. ( Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) In de ciding the question of potential merit, the trial court properly considers the pl eadings and evidentiary submissions of both the plaintiff and the defendant , but may not weigh the credib ility or comparative strength of any competing evidence. ( Taus v. Loftus (2007) 40 Cal.4th 683, 713-714; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 .) The question is whether the plaintiff presented evidence in opposition to the defendant’s motion that, if believed by the trier of fact, is sufficient to suppor t a judgment in the plaintiff’s favor. ( Zamos v.
Stroud (2004) 32 Cal.4th 958, 965.) Nonetheless, the court s hould grant the motion “‘if,10 as a matter of law, the defend ant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.’” ( Taus, at p. 714; Wilson, at p. 821; Zamos, at p. 965.)

c. Standard of review The trial court’s rulings on a special motion to strike are subject to our independent or de novo review. ( Flatley v. Mauro (2006) 39 Cal.4th 299, 325; accord, Rusheen v. Cohen, supra, 37 Cal.4th at p. 1055.)
2. The Causes of Action Do Not Arise from Protected Activity “There is no question that the prosecuti on of an unlawful detainer action is indisputably protected activity within the meaning of section 425.16.” ( Clark v. Mazgani (2009) 170 Cal.App. 4th 1281, 1286 ( Clark ).) Nevertheless, consistent with the general principles governing the scope of secti on 425.16, a complaint initiated after the prosecution of an unlawful detainer action do es not compel the conclusion the causes of action arise from protected activity. For exam ple, although an unla wful detainer action may precede the termination of a tenancy, “[t]erminating a tena ncy or removing a property from the rental market are not activ ities taken in furtherance of the constitutional rights of petition or free speech.” ( Id. at pp. 1286-1287.) Thus, in Clark the court held a tenant’s complaint for fraudulen t eviction to evade a rent c ontrol ordinance did not arise from acts taken by the landlord in furtherance of his right of petition: “[Tenant’s] action against [landlord] is not based on [landlord’s] filing or servi ce of the notices of intent to evict, it is not based on anythi ng [landlord] said in court or a public proceeding, and it is not based on the fact that [landlord] prosec uted an unlawful detainer action against her. The complaint is based on [landlord’s] a llegedly unlawful eviction, in that she fraudulently invoked the [rent stabilization or dinance] to evict [tenant] from her rentcontrolled apartment as a ruse to provide housing for her daug hter, but never installed her daughter in the apartment as re quired by that ordinance, and also that she failed to pay [tenant’s] relocation fee.” ( Clark , at p. 1288; see Department of Fair Employment & Housing v. 1105 Alta Lo ma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1284 ( 1105 Alta Loma Apartments ) [disability discrimination suit following unlawful detainer11 action did not arise from protected activity; action “was not an attack on any act [landlord] committed dur ing the rental property remova l process or during the eviction process itself”]); see also Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 161-162 [tenants’ “suit is not based on the [l andlords’] filing and serving of a notice [to permanently remove a rental unit from the ma rket] required under the Ellis Act, it is based on the [tenants’] contenti on ‘[landlords] are not entitled to invoke or rely upon the Ellis Act to evict plaintiffs from their home’”].) Like these cases, First Southern’s cause s of action do not arise from Pension Plan’s acts in furtherance of the filing or pr osecution of the unlawful detainer action. Rather, they are based on allegations Pension Plan deliberately delayed assignment of the lease to First Southern by requesting additi onal financial informa tion to purportedly
assess its creditworthiness wh en in actuality it was crea ting an opportunity for the Thomases to execute their plan to take back Aviation Mortgage . Pension Plan’s purported motive for pa rticipating in the scheme, which included changing the locks and limiting First Southern’s access to the offices, was to recapture the office space and rent itat a higher rate than provided in the Aviation Mortgage lease. Whether or not farfetched, the causes of action pleaded by Firs t Southern arise from Pension Plan’s conduct preceding the unlawful detainer action, not th e unlawful detainer action itself. (See
Wallace v. McCubbin (2011) 196 Cal.Ap p.4th 1169, 1183 ( Wallace ) [for purposes of § 425.16, “an alleged act is incidental to a claim, and incidental to any unprotected activity on which the claim is ba sed, only if the act is not alleged to be the basis for liability”].) The unlawful detainer action is incidental to any claims in the lawsuit, which are based on nonprotected activity. Pension Plan urges us to ignore Clark and the other analogous cases—two of which are from this division ( Marlin and 1105 Alta Loma Apartments )—and follow the
more recent decision in Wallace
, supra , 196 Cal.App.4th 1169. In Wallace plaintiffs Cheryl Wallace and John Owen, who leased an apartmen t together, filed a complaint against their landlord and two ne ighbors after they were evic ted following the neighbors’ repeated complaints Wallace’s service dog was aggressive. The complaint asserted12 causes of action including wrongful eviction, re taliatory eviction, breach of the covenant of quiet enjoyment, negligen t and intentional infliction of emotional distress and housing discrimination. ( Wallace , at p. 1178.) It alleged th e defendants had engaged in a “‘systematic campaign of harassment and in timidation against disabled tenants with limited means, designed to forc e Plaintiffs from their home of four years’” because they had a “‘prescribed service dog.’” ( Ibid. )
The trial court denied the defendants’ sec tion 425.16 motion to strike the causes of action for wrongful eviction a nd retaliatory eviction on the gr ound they did not arise from protected activity because the gravamen of the complaint wa s the pattern of disability discrimination designed to dr ive the plaintiffs from the home, not the filing of the unlawful detainer action. (Among other acts a lleged as part of the wrongful scheme, the neighbors had reported to animal control that the dog was vicious and dangerous.) ( Wallace
, supra , 196 Cal.App.4th at p. 1180.) The Court of Appeal reversed. With respect to wrongful eviction, the court expl ained the cause of action was predicated on the defendants’ attempts to recover possessi on of the apartment in violation of San Francisco’s rent stabilization ordinance, wh ich proscribes recovery unless “landlord’s dominant motive pertains to at least one of th e occurrences specified in the ordinance. [Citation.] [¶] According to the complaint, the acts by whic h the defendants attempted to recover possession of the apartment . . . at leas t included, [the landlord’s] service of his three-day notice to quit and his filing of the unla wful detainer action. Indeed this is the wrongdoing alleged in the complaint that is most obviously related to a wrongful eviction claim.” ( Id. at p. 1182.)
At most Wallace is relevant only to First Southern ’s claim for wrongful eviction. (See Wallace
, supra , 196 Cal.App.4th at p. 1192 [“ anti-SLAPP motion was directed only
to the first and thirteenth cau ses of action, for wrongful ev iction and retaliation, and not
to . . . causes of action fo r discrimination”].) But Wallace itself discusses why it is not dispositive of the wrongful evic tion cause of action in the case at bar. In distinguishing
1105 Alta Loma Apartments and other cases relied upon by the dispossessed tenants, the
Wallace court explained: “[U]nlike [ 1105 Alta Loma Apartments ] and the other cases on13 which [tenants] rely, a three-day notice and an unlawf ul detainer action were the bases of [tenant’s] first and 13th causes of action. These alleged acts did not merely precede or trigger the lawsuit by [tenants]; nor were th ese acts alleged solely as evidence of other wrongdoing that was the actual basis of the lawsuit.” ( Wallace , at p. 1194.) Here, First Southern’s cause of action for wrongful eviction is apparently predicated on the allegations of an overarching scheme to for ce First Southern to abandon its right to use and occupy the premise: “By doing the acts de scribed in this complaint, Defendants have wrongfully evicted Plaintiff from the premises.” Thus, th e wrongful acts alleged were Pension Plan’s failure to timely approv e the assignment, continual requests for information, rekeying the premises and caus ing disruption to Firs t Southern’s business operations, not the prosecution of the unlawful detainer action. Indeed, the three-day notice to pay or quit was predicated on First Southern’s failure to pay rent, which it does not dispute, not any manufac tured controversy regarding assignment of the lease or failure to provide requested financial information.
Because none of the causes of action ar ises from protected activity within the meaning of section 425.16, Pens ion Plan’s special motion to strike was properly denied.
DISPOSITION
The order is affirmed. First Southern is to recover its costs on appeal.

PERLUSS, P. J.

We concur:

ZELON, J. SEGAL, J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.