Filed 7/17/13 Living Green Growers v. Valley Center CA4/1 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

LIVING GREEN GROWERS, LLC, 

 Cross-complainant and Respondent, 

 v. 

VALLEY CENTER II, LP et al., 

 Cross-defendants and Appellants. 

 D062450 

 (Super. Ct. No. 37-2011-00057671- 

 CU-CO-NC) 

 APPEAL from an order of the Superior Court of San Diego County, Thomas P. 

Nugent, Judge. Affirmed. 

 Hill, Farrer & Burrill, Neil D. Martin and Grant K. Peto for Cross-defendants and 

Appellants. 

 Law Offices of Joshua G. Blum, Joshua G. Blum and Matthew C. Heerde for 

Cross-complainant and Respondent. 

 Valley Center II, LP (VCII) filed a complaint against several defendants, including 

Living Green Growers, LLC (Growers), seeking a declaration that VCII owned certain 

nursery plants and related materials on VCII's property. Shortly after, Growers filed a 
2 

cross-complaint, alleging claims against VCII, its principal Randall Smith, and two of 

Smith's business associates, David Judaken and Gonzalo Nieto (collectively crossdefendants).1 

 Cross-defendants moved to dismiss Growers' cross-complaint under the antiSLAPP statute. (Code Civ. Proc., § 425.16 (§ 425.16).) The court denied the motion, 

finding Growers' claims arose out of a commercial dispute regarding plants and were not 

based on activities protected by the anti-SLAPP statute. 

 On appeal, cross-defendants contend the court erred in denying their anti-SLAPP 

motion on two causes of action alleged in Growers' cross-complaint: the seventh and 

ninth causes of action. We reject these contentions and affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

Background Summary 

 VCII owns property in Valley Center used to grow commercial nursery plants. 

Randall Smith is VCII's principal. For ease of reference and where appropriate, we shall 

refer collectively to Smith and VCII as "Smith." 

 In late 2010 or early 2011, Smith had discussions with David Itzikman and 

Michael Gill about a proposed business transaction. The parties discussed that Itzikman 

and Gill would form a plant wholesaler business and use Smith's property to grow plants, 

and in exchange they would assist Smith with some of his financial obligations. Shortly 

 

1 Jo Fusion, Inc. was also a cross-complainant and brought claims against VCII and 

various parties. However, those claims are not a subject of this appeal. We thus do not 

discuss these claims, except as they are relevant to the issues before us. 
3 

after, Itzikman and Gill formed a limited liability company (Growers) and then placed 

plants and related supplies on Smith's property. For the next several months, Growers 

maintained those plants on Smith's property. 

 On about July 15, 2011, Smith retained a financial consultant, cross-defendant 

Nieto. Two weeks later, in late July, Smith, Nieto, and another business associate (crossdefendant Judaken2) refused to permit Growers to have access to Smith's property and 

claimed ownership interests in the plants. 

 The next month, on August 30, 2011, Smith's entity (VCII) filed a complaint 

against Growers, Itzikman, and Gill, seeking a declaratory judgment as to the parties' 

respective interest in Smith's property and the disputed plants. 

Growers' Cross-Complaint 

 Three months later, on December 1, 2011, Growers filed a cross-complaint against 

Smith, VCII, Judaken, and Nieto. Growers' cross-complaint contained the following 

factual allegations. 

 In 2010, Smith was having substantial personal and financial difficulties, and had 

abandoned and/or mismanaged his business ventures. One of those ventures was the 

operation of a retail nursery on Smith's rural property. 

 In about February 2011, Itzikman and Gill approached Smith with an offer to enter 

into an agreement whereby Itzikman and Gill would assume Smith's payments on a 

secured loan in exchange for Smith allowing Itzikman to use a portion of the property for 

 

2 The record does not specify Judaken's precise relationship with Smith, but it 

appears Judaken later acquired an interest in Smith's property through a receivership. 
4 

his own business (Growers). While the parties were discussing the details of this 

proposal and as consideration for services and other assistance, Smith agreed that 

Growers could use Smith's property to store plants, soil, and supplies, and that Growers 

would be granted unfettered access to the property to inspect, grow, maintain, and 

remove the plants as necessary to fulfill its customer orders. 

 By May 2011, Smith was still in personal and financial distress, but had not yet 

signed these proposals. In a meeting attended by Itzikman, Gill and Smith, Smith 

allegedly reiterated his earlier representations that he had no interest in Growers' plants 

stored on Smith's property, those plants could remain on the property, and Growers had 

permission to enter the property to maintain and remove the plants. Based on these 

representations, Growers continued to expend efforts and money to maintain its plants. 

 However, in late July 2011, "Cross-Defendants [Smith, Nieto, and Judaken] 

threatened [Growers], and its laborers, and prevented them from accessing [Smith's 

property], wrongfully converted [Growers'] plants, soil, and supplies, falsely claimed 

ownership interest in its plants, and intentionally neglected and failed and refused to 

monitor and maintain the plants belonging to [Growers] . . . , causing such plants to 

deteriorate, and causing [Growers] to breach its contracts with customers and damaging 

its business and reputation." 

 Based on these allegations, Growers' cross-complaint asserted 12 causes of action. 

 The first three causes of action and the eighth cause of action concern primarily Jo 

Fusion, Inc.'s claims, and are not relevant here. The fourth cause of action is Growers' 

breach of contract claim against VCII. The fifth and sixth causes of action are fraud-
5 

based claims against VCII and Smith, alleging that these parties intentionally 

misrepresented and/or made false promises that Growers could place its plants, soil, and 

supplies on the property, and Growers relied on those representations to its detriment. 

 Growers asserted the seventh, ninth, tenth, and eleventh causes of action against 

all four cross-defendants: VCII, Smith, Judaken, and Nieto. The seventh cause of action 

alleged conversion or trespass to chattels. The ninth cause of action alleged intentional 

interference with contractual relations. The tenth and eleventh causes of action alleged 

intentional and negligent interference with prospective economic relations. Although 

labeled differently and each may require different levels of proof on various elements, the 

essence of each of these claims was the allegation that cross-defendants improperly 

claimed ownership interests in Growers' plants and wrongfully prevented Growers and its 

workers from accessing and maintaining its plants on Smith's property, thereby causing 

the plants to lose value and resulting in Growers' inability to fulfill its own contracts with 

its customers. 

 Specifically, each of these four causes of action incorporated the allegation that: 

"[I]n late July 2011, Cross-Defendants, and each of them, threatened 

[Growers], and its laborers, and prevented them from accessing 

[Smith's] property, wrongfully converted its plants, soil and supplies, 

falsely claimed ownership interest in its plants, and intentionally 

neglected and failed and refused to monitor and maintain the plants 

belonging to [Growers], despite demand and their false assurances 

that they were doing so, causing such plants to deteriorate, and 

causing [Growers] to breach its contracts with customers and 

damaging its business and reputation." 

Additionally, the seventh and ninth causes of action contain the following similar 

paragraph: 
6 

"Beginning in August 2011, Cross-Defendants, and each of them, 

knowingly and intentionally threatened GROWERS, and its laborers, 

and prevented them from accessing the plants, wrongfully took 

possession of the property and converted it for their own use, falsely 

claimed ownership interest in the plants, and intentionally neglected 

and failed and refused to monitor and maintain the plants belonging 

to GROWERS, despite demand and their false assurances that they 

were doing so. . . ."3 

The tenth and eleventh causes of action contain an almost identical paragraph, but omit 

the phrase "Beginning in August 2011." Other than these allegations, Growers did not 

identify any additional wrongful conduct or activities by cross-defendants that formed the 

basis of the trespass/conversion or interference claims alleged in the seventh, ninth, tenth, 

and eleventh causes of action. 

 The twelfth cause of action sought declaratory relief, seeking an order that 

Smith/VCII have no ownership interest in Growers' plant inventory. 

Cross-Defendants' Anti-SLAPP Motion 

 Shortly after Growers filed this cross-complaint, cross-defendants moved to 

dismiss the pleading under the anti-SLAPP statute. (§ 425.16.) They argued that the 

cross-complaint was subject to the anti-SLAPP statute because the "only things that 

Cross-Defendants have done to claim an ownership interest in the plants" were to (1) file 

the underlying complaint for declaratory relief and (2) respond after Growers called the 

sheriff's department. They further argued Growers would be unable to establish a 

probability of prevailing on its claims for various reasons, including that cross-

 

3 In the ninth cause of action, this paragraph begins "Notwithstanding the above" 

and then states "beginning in August 2011." However, this distinction is not material for 

our purposes. 
7 

defendants' actions—filing a lawsuit and communicating with the sheriff—constituted 

privileged litigation activity. 

 In support of this motion, each of the cross-defendants submitted a declaration. 

 In his declaration, Smith denied that he agreed to permit Growers or Itzikman to 

grow plants on his property, and also denied that he contacted Growers, Itzikman or Gill 

to claim an ownership interest in the plants. He said he retained an attorney "[o]n or 

about August 8, 2011 . . . ." 

 In his declaration, Nieto said his only actions with respect to claiming an interest 

in the disputed plants were: (1) retaining an attorney for Smith on August 8, 2011; (2) 

writing a letter to the sheriff's department on August 30, 2011 informing the sheriff that 

Growers had no legal right to enter Smith's property; and (3) twice speaking on the 

telephone with Itzikman on August 30, 2011, in which he told Itzikman to have his 

counsel contact Smith's counsel. 

 In his declaration, Judaken similarly claimed that his only actions pertaining to the 

disputed plants occurred in August 2011 during communications with the sheriff's 

department and his attorney. Specifically, he said that: "On or about August 30, 2011, I 

learned that Itzikman and [Gill] were attempting to get through the locked gates on 

[Smith's] [p]roperty. . . . I spoke with the sheriff's department and told them that 

Itzikman and Gill did not have a lease for the [property] and that they were trespassing." 

[¶] . . . [¶] . . . The only actions that I have taken to claim an ownership interest in the 

plants on behalf of [Smith] . . . have been to contact my attorneys regarding this litigation 

and the sheriff's department regarding Itzikman and Gill's trespassing on the [property]." 
8 

 Cross-defendants' attorney also submitted a declaration, stating that he sent a letter 

to Growers' counsel and telephoned the sheriff's department in an attempt to prevent 

Itzikman and Gill from removing plants from Smith's property until the matter had been 

resolved in court. 

 In opposition to the anti-SLAPP motion, Growers did not dispute that several of 

the activities discussed in cross-defendants' declarations—a letter from cross-defendants' 

counsel, cross-defendants' communications with the sheriff in late August 2011, and 

cross-defendants' filing of the complaint—were protected SLAPP activities. But 

Growers argued its claims against cross-defendants were not based on these activities, 

and instead the claims arose from cross-defendants' unprotected actions beginning in late 

July 2011. 

 In support, Growers relied on the allegations of the cross-complaint (which did not 

mention the protected activities) and Itzikman's declaration. Itzikman's declaration stated 

in part: 

"[O]n July 27, 2011, without notice, Smith and others on his behalf 

ejected [Growers'] own workers from [Smith's property], where they 

had been caring for [Growers'] plants for the previous four months. 

Moreover, Smith and others on his behalf informed the workers to 

advise [Growers] that the plants were 'no longer' the property of 

[Growers] and now were the property of Smith. 

 . . . The following day, on July 28, 2011, I traveled to the [property] 

to access and secure the maintenance of [Growers'] plants. When I 

arrived, I was suddenly informed by Cross-Defendants David 

Judaken and Gonzalo Nieto, that Smith was refusing [Growers] . . . 

any access to its plants for purposes of caring for them or removing 

them to fulfill its contractual obligations. They further informed me 

that Smith was now claiming an ownership interest in [Growers'] 

plants and would not allow [Growers] any access to them moving 
9 

forward. In addition, Judaken and Nieto informed me that they were 

also claiming an ownership interest in [Growers'] plants through 

their newly formed business relationship with Smith . . . . 

 . . . Since that date, Cross-Defendants, through their exclusive 

possession and control of [Growers'] plants have intentionally and/or 

negligently caused them to deteriorate and rendered the property 

valueless in many instances. This resulted in instances where 

[Growers'] customers have returned the plants based on their poor 

condition, causing [Growers] significant damages . . . . 

 . . . [The actions alleged in the cross-complaint] all took place well 

before the filing of the complaint in this matter. [¶] . . . [¶] . . . The 

allegations in the Cross-Complaint regarding false claim of 

ownership concern actions taken by Smith that preceded the filing of 

the complaint. Additionally, the allegation of claimed ownership 

was one of several alleged acts of misconduct by Smith involving 

refusing [Growers] and its laborers access to the premises where its 

plants were located, access to the plants, allowing the plants to 

deteriorate, causing [Growers] to breach its contracts with others and 

a host of other activities." (Italics added.) 

 In reply, cross-defendants reiterated that the claims were governed by the antiSLAPP statute because "the only things they ever did to claim an interest in the plants 

were protected activities (sending a letter to counsel before the lawsuit was filed, 

responding to the sheriff department after Cross-Complainant called them, and filing the 

underlying complaint)." 

 After a hearing, the court denied the anti-SLAPP motion, finding cross-defendants 

did not meet their burden to show the claims alleged protected activity. The court stated: 

"[T]he cross-complaint did not arise out of Cross-defendants' action in filing the 

complaint and communicating with the sheriff's department. [¶] Specifically, . . . 

[Growers'] claims . . . arose out of a verbal agreement made in February 2011 and the 

cross-complaint is replete with allegations of pre-complaint conduct by Cross-
10 

defendants." The court also found cross-defendants' anti-SLAPP motion was frivolous 

and Growers was entitled to attorney fees. (§ 425.16, subd. (c)(1).) 

DISCUSSION 

I. Generally Applicable Legal Principles

 A special motion to strike under section 425.16 allows a defendant to obtain early 

dismissal of a lawsuit that qualifies as a SLAPP. (§ 425.16, subd. (b)(1).) A court 

engages in a two-step analysis in determining whether a dismissal is required. (Equilon 

Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) First, the court must 

determine if the lawsuit falls within the scope of the anti-SLAPP statute. A cause of 

action is governed by this statute if it arose from activities that were in furtherance of the 

moving party's free speech or petition rights. (Ibid., § 425.16, subd. (b)(1).) The moving 

party bears the burden of demonstrating that a cause of action arose from such protected 

activity. (§ 425.16, subd. (b)(1).) If the moving party meets this burden, the court then 

engages in the second step of the analysis. In this step, the burden shifts to the opposing 

party to demonstrate "a probability of prevailing on the claim." (Navellier v. Sletten 

(2002) 29 Cal.4th 82, 88 (Navellier).) 

 In making these determinations, the trial court considers "the pleadings, and 

supporting and opposing affidavits stating the facts upon which the liability or defense is 

based." (§ 425.16, subd. (b)(2).) But the court "does not weigh credibility or compare 

the weight of the evidence. Rather, the court's responsibility is to accept as true the 

evidence favorable to the [party opposing the motion] . . . ." (HMS Capital, Inc. v. 

Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) We review de novo the trial court's 
11 

rulings on an anti-SLAPP motion. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 

645.) 

II. Analysis

 In the proceedings below, cross-defendants sought to dismiss all 12 causes of 

action in the cross-complaint. On appeal, they challenge the court's denial of their antiSLAPP motion only as to two causes of action: (1) the seventh cause of action for 

conversion or trespass to chattels; and (2) the ninth cause of action for intentional 

interference with contractual relations between Growers and its customers. They argue 

that unlike the other causes of action, these claims arose from protected activity because 

each includes a paragraph containing the phrase beginning in August 2011. Crossdefendants contend that their declarations show that the only activities in which they 

engaged after August 1, 2011 were constitutionally protected activities (communicating 

with the sheriff, directing their counsel to write a letter to Growers, and filing their 

complaint), and therefore the seventh and ninth causes of action are necessarily subject to 

the anti-SLAPP statute. 

 Growers does not dispute that cross-defendants' communications with the sheriff's 

department, their counsel's letters, and the filing of the complaint are protected activities 

under the anti-SLAPP statute. (See Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.) 

However, Growers maintains that its seventh and ninth causes of action were not based

on these activities and thus its claims do not arise from protected actions. In support, 

Growers notes: (1) the pleadings do not mention or refer to the constitutionally protected 

activities; (2) the seventh and ninth causes of action expressly incorporate the earlier 
12 

allegations that cross-defendants engaged in wrongful conduct in July 2011; and (3) 

Itzikman's declaration supports that each of the defendants (Smith, Judaken, and Nieto) 

engaged in wrongful activities beginning in July 28, when they prevented Growers' 

workers from entering Smith's property to access Growers' plants, and then continued to 

engage in these unprotected activities (e.g., preventing access to the property, failing to 

maintain the plants) during August 2011 and beyond. 

 We agree with Growers' position. 

 In determining whether a claim arises from protected activity, a court must 

" 'examine the principal thrust or gravamen of a plaintiff's cause of action to determine 

whether the anti-SLAPP statute applies' . . . . We assess the principal thrust by 

identifying '[t]he allegedly wrongful and injury-producing conduct . . . that provides the 

foundation for the claim.' [Citation.]" (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 

Cal.App.4th 1264, 1271-1272, second italics added; see Tuszynska v. Cunningham (2011) 

199 Cal.App.4th 257, 269-270.) "The anti-SLAPP statute's definitional focus is [on] the 

defendant's activity that gives rise to his or her asserted liability—and whether that 

activity constitutes protected speech or petitioning." (Navellier, supra, 29 Cal.4th at p. 

92.) 

 The fact that a cross-complaint was filed after the cross-defendants engaged in 

protected activity or that the cross-complaint was triggered by the protected activity does 

not mean the claim "aris[es]" from that activity. (City of Cotati v. Cashman (2002) 29 

Cal.4th 69, 77.) Instead, the moving party must show the defendants' activities alleged to 

be wrongful and upon which the claim is based constitutes protected activity. (Ibid.) 
13 

Although we are required to broadly construe the anti-SLAPP statute (§ 425.16, subd. 

(a)), we must examine the pleadings and related evidentiary record in a fair and 

commonsense manner to determine whether the claims are based on protected activities. 

 Fairly read, the seventh and ninth causes of action do not purport to base their 

claims on cross-defendants' petitioning activities. In these causes of action, Growers did 

not mention or refer to the petitioning activities. Each cause of action incorporates the 

factual allegation that in late July 2011, cross-defendants engaged in improper (and 

unprotected) actions by threatening Growers and preventing access to the property, and 

claiming an ownership interest in the plants. Itzikman's declaration supports that these 

unprotected activities constituted the factual foundation for the seventh and ninth causes 

of action. Although cross-defendants focus on the petitioning activities in their 

declarations, it is the party filing the complaint or cross-complaint, and not the opposing 

party, who decides the acts for which it is seeking to hold the party liable. 

 Cross-defendants contend the seventh and ninth causes of action must have been 

based on their constitutionally-protected petitioning activities because Growers included 

the phrase "beginning in August 2011" when identifying the alleged wrongful conduct. 

They say that Growers did not produce any evidence that they engaged in unprotected 

activities after the July 29 incident. 

 This argument is unsupported by the record. Growers submitted evidence 

showing that in late July 2011, Smith ejected Growers' workers from the property, and 

Nieto and Judaken refused to allow Growers access to the disputed plants and claimed 

their own ownership interests in the plants through their newly formed business 
14 

relationships with Smith. It is undisputed that these activities were not protected by the 

anti-SLAPP statute. Further, Itzikman stated in his declaration that these activities 

continued after July 2011, presumably through the time the cross-complaint was filed 

(December 2011). The fact that cross-defendants may not have had unprotected 

communications with Growers after July 2011, does not mean they were not continuing 

to engage in the alleged unprotected wrongful activities into August and beyond, 

including by failing to maintain Growers' plants and continuing to prevent access to the 

property. 

 Additionally, we are not convinced that Growers' use of the phrase beginning in 

August 2011 in the seventh and ninth causes of action reflected an intent to hold crossdefendants liable only for activities that occurred beginning in August 2011 (and not 

before that time). When read in isolation, the phrase "beginning in August 2011" does 

suggest that cross-defendants' alleged wrongful conduct commenced for the first time in 

August. However, this conclusion is not reasonable when viewing the phrase in context 

of the entire complaint, together with the supporting declarations. Read as a whole, the 

complaint reflects that in each cause of action Growers is seeking to hold crossdefendants liable for their conduct and actions occurring before and after August 2011. 

This conclusion is supported by the fact that the factually and legally similar claims 

alleged in the tenth and eleventh causes of action (negligent and intentional interference 

with prospective economic advantage) do not specifically include the "beginning in 

August 2011" phrase. It is not reasonable to conclude that Growers intended to base its 

conversion and contract-interference claims (alleged in the seventh and ninth cause of 
15 

action) only on conduct beginning in August 2011, and to base its interference-withprospective-economic-advantage claims (alleged in the tenth and eleventh causes of 

action) on conduct occurring before or after August 2011. 

 In this regard, we find unavailing cross-defendants' reliance on the ejusdem 

generis concept. " 'Under the principle of ejusdem generis (literally, "of the same kind") 

[citations], where specific words follow general words in a contract [or a statute], "the 

general words are construed to embrace only things similar in nature to those enumerated 

by the specific words.". . .' " (Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 

Cal.App.4th 1250, 1275.) This statutory and contract interpretation principle has no 

applicability here. The interpretation of a pleading for purposes of the threshold section 

425.16 analysis does not resemble the interpretation of a contract or a statute. Unlike 

statutory or contract interpretation, in determining whether the defendant met its burden 

to show the claims arose from protected activity, we are not required to focus on the 

individual words, and instead must consider all of the allegations, including those 

incorporated in a particular cause of action, together with the evidence submitted by the 

parties. Under anti-SLAPP analysis, a court does not ignore general allegations merely 

based on a single allegation of more specific conduct. In any event, as noted, the 

allegation of conduct occurring in August 2011 incorporated essentially the same 

unprotected activities that were alleged to be wrongful in late July 2011. Thus, our 

interpretation is consistent with the ejusdem generis principle. 

 Cross-defendants' reliance on principles concerning "mixed" causes of action in 

the SLAPP context is also unhelpful here. Generally, if "a cause of action is based on 
16 

both protected activity and unprotected activity, it is subject to section 425.16 ' "unless 

the protected conduct is 'merely incidental' to the unprotected conduct." ' " (Haight 

Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 

1551.) However, in this case we have concluded the cause of action arises from 

unprotected activity and not on protected activity. Thus, the standards applicable to 

mixed causes of action are inapplicable. Moreover, to the extent the complaint can be 

viewed as including allegations of protected conduct (e.g., the communications between 

counsel, cross-defendants' communications with the sheriff, and cross-defendants' filing 

of the complaint) this conduct was incidental to Growers' claims. Reading the complaint 

as a whole, Growers was seeking relief arising from a commercial business dispute based 

on allegations that cross-defendants refused to allow access to Growers' plants and then 

failed to maintain the plants resulting in their destruction. In the context of this dispute, 

any references to unprotected conduct were incidental as a matter of law. 

III. Attorney Fees 

Growers requests this court award attorney fees on appeal under section 425.16, 

subdivision (c), which provides: "If the court finds that [an anti-SLAPP] motion to strike 

is frivolous or is solely intended to cause unnecessary delay, the court shall award costs 

and reasonable attorney's fees to a plaintiff [or cross-complainant] prevailing on the 

motion . . . ." On the record before us, we decline to find that cross-defendants' appeal 

was frivolous or solely intended to cause delay. We therefore deny Growers' attorney 

fees request. 
17 

DISPOSITION 

 Order affirmed. Appellants to bear respondent's costs on appeal. 

HALLER, J. 

WE CONCUR: 

HUFFMAN, Acting P. J. 

AARON, J.