Filed 3/23/16 Route 66 CPAs v. Glendora Courtyard CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 ONE

ROUTE 66 CPAs, LLC,

Plaintiff and Respondent,

v.

GLENDORA COURTYARD, LLC et al.,

Defendants and Appellants.

 B264055

 (Los Angeles County

 Super. Ct. No. KC066584)

APPEAL from an order of the Superior Court of Los Angeles County, Dan T. Oki, 

Judge. Affirmed.

John W. Melvin; Law Offices of Ezekiel E. Cortez, Ezekiel E. Cortez and Joshi A. 

Valentine for Defendants and Appellants.

Mahoney & Soll, Paul M. Mahoney and Richard A. Soll for Plaintiff and 

Respondent.

——————————
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Glendora Courtyard, LLC (Glendora) and Equity Ag Financial, Inc. (EAF) appeal

from the trial court’s denial of a motion to strike the second amended complaint of Route 

66 CPAs, LLC (Route 66) under Code of Civil Procedure section 425.16.1 We affirm.

BACKGROUND

Route 66 owns one, and Glendora owns two, of the three office buildings in 

Glendora Courtyard, a commercial development which includes a surrounding parking 

lot, landscaping, driveways, sidewalks, and hardscape (the common area). At the time 

this lawsuit was filed, a declaration of covenants, conditions, and restrictions (CC&Rs) 

governed the management of the common area. Route 66 was responsible for 42.95 

percent of the common area expenses, and Glendora was responsible for 57.05 percent, 

with payment due each month. Glendora was the maintenance director for the 

development, and EAF was the property manager beginning in February 2012.

The prior lawsuit

In late 2011, a dispute arose between Glendora and Route 66. Route 66 believed 

Glendora’s planned improvements to the common area were unacceptable, too expensive, 

and not authorized by the CC&Rs. In January 2012, Glendora demanded that Route 66 

agree to the budgeted improvements, which would drastically increase Route 66’s share 

of monthly expenses. When discussions did not result in a resolution, on April 9, 2012, 

Route 66 filed a complaint against Glendora alleging breaches of the CC&Rs and seeking 

an injunction against the improvements and declaratory relief. The trial court denied 

Route 66’s requested preliminary injunction. Glendora then filed a cross-complaint for 

equitable indemnity, interference with prospective economic advantage, and breaches of 

contract, alleging that under the CC&Rs it had the authority as maintenance director to 

make the proposed improvements.

Route 66 filed a special motion to strike under section 425.16, contending that 

Glendora’s cross-complaint targeted a series of letters between the parties regarding the 

 

1 All further statutory references are to the Code of Civil Procedure unless 

otherwise indicated.
3

dispute over the common-area improvements, as well as allegations in Route 66’s

complaint. The trial court denied the motion. Route 66 appealed and we affirmed, 

concluding that the cross-complaint was directed at Route 66’s underlying conduct in 

refusing to allow Glendora to make the improvements. (Route 66 CPAs, LLC v. 

Glendora Courtyard, LLC (May 13, 2014, B247318) [nonpub. opn.].)2

Meanwhile, Route 66’s complaint in the prior lawsuit went to trial in October 

2013. Route 66 announced it would not proceed on its claims for breach of contract and

presented no evidence on those claims. On December 13, 2013, noting that the crosscomplaint was not before it, the trial court found in favor of Route 66 on the declaratory 

relief claim, concluding that Glendora must obtain Route 66’s consent before performing 

some of the alterations, Route 66 did not unreasonably withhold that consent, and 

Glendora could paint its own buildings but could not paint Route 66’s building and 

charge Route 66 for the painting. The court denied injunctive relief. The trial court 

granted Glendora’s motion for judgment under section 631.8 on Route 66’s claims for 

breach of contract, breach of the covenant of good faith and fair dealing, and breach of 

fiduciary duty.

The current lawsuit

On December 23, 2013, Glendora sent a notice of default to Route 66, stating that 

Route 66 owed Glendora $171,330.27 for overdue common area maintenance obligations 

and for its share of the cost of resurfacing the parking lot. Glendora stated that it would 

file a lien as authorized by the CC&Rs if Route 66 did not cure the default in 10 days.

Route 66 filed a complaint for declaratory and injunctive relief against Glendora

on December 27, 2013, alleging that Route 66 was not in default in any amount, 

Glendora’s charges were improper, Glendora’s notice of default was invalid under the 

terms of the CC&Rs and did not comply with applicable statutes, and the recordation of a 

lien would cause Route 66 irreparable injury. Route 66 sought a declaration of the 

 

2 We grant Glendora’s request that we take judicial notice of our appellate opinion 

in the prior lawsuit. We deny Glendora’s request that we take judicial notice of two 

isolated portions of the trial transcript from the prior lawsuit.
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parties’ rights under the CC&Rs and a preliminary and permanent injunction restraining 

Glendora from recording the notice of default. On December 31, 2013 Route 66 filed an 

ex parte application for a temporary restraining order to enjoin Glendora from recording 

an assessment lien, which the court denied. Glendora recorded a claim of lien on Route 

66’s building for $171,330.27 on January 15, 2014. On January 17, 2014, the trial court 

issued a preliminary injunction restraining Glendora from filing a lien in that amount. On 

January 22, Glendora issued a new notice of default in the amount of $57,360.67, stating 

that the prior lien was superseded. Route 66 paid the $57,360.67 under protest with a 

check dated January 27, 2014. Glendora nevertheless recorded a lien in that amount on 

February 19, 2014. On March 12, 2014, the court granted Route 66’s motion to release 

the lien. After a court order dated May 1, 2014, Glendora filed a release of lien on 

May 5, 2014.

On March 2, 2015, Route 66 filed a second amended complaint (SAC). The SAC

alleged that the first notice of default (for $171,330.27) was invalid and illegal, and 

requested declaratory relief stating the parties’ rights, liabilities and obligations under the 

CC&Rs. The SAC also requested a preliminary and permanent injunction against 

Glendora’s recording of a notice of default. Route 66 also requested an order removing 

Glendora as maintenance director, alleging that while Glendora claimed that EAF was the 

maintenance director, EAF was under the complete dominion and control of Glendora. 

Finally, Route 66 requested an accounting and restitution of the $57,360.67 it had paid to 

Glendora.

On March 18, 2015, Glendora filed a motion to strike the SAC under section 

425.16 and for monetary sanctions against Route 66 and its counsel. Glendora asserted 

that the SAC arose out of its absolutely privileged activity in recording assessment liens 

(and incidental steps) and privileged litigation statements of defense counsel. Glendora 

pointed to three subparagraphs in the cause of action for removal of the maintenance 

director, which provided: “(l) Willful abuse of power by the Maintenance Director in 

falsely and fraudulently serving a notice of default in the amount of $171,330.27 for 

parking lot repairs that were never paid or incurred by the Maintenance Director”; 
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“(q) Willful abuse of power by the Maintenance Director by recording an assessment lien 

for $57,360.67 after ROUTE 66 paid the money under protest, and then refusing to 

release the assessment lien”; and “(s) Willful abuse of power by the Maintenance 

Director in falsely and fraudulently notifying ROUTE 66 that City of Glendora directed 

the Maintenance Director’s attorney to remove and replace most of the remaining turf 

and hedges with more white rock gravel and birds of paradise, and also to replace the 

sprinkler heads with a drip system, when no such direction was ever given by the City of 

Glendora.” Glendora asserted that the three paragraphs were “necessary and material to 

each of the causes of action” and therefore the entire SAC should be stricken, because

Route 66 had already lost all its claims based on the CC&Rs in the prior lawsuit and was 

now attempting to “bypass the controlling defense judgment under . . . [section] 631.8.”

In opposition, Route 66 called the motion “patently frivolous.” Route 66 agreed 

that the first two causes of action pertained to the first assessment lien. While the 

recording of an assessment lien was privileged activity, the trial court had already 

concluded in denying Glendora’s earlier motion for summary judgment on the first 

amended complaint that the first two causes of action survived, because the litigation 

privilege under Civil Code section 47, subdivision (b) did not bar a property owner from 

challenging an invalid lien by way of a complaint for declaratory and injunctive relief. 

The trial court had also concluded in its order denying summary judgment that the issues 

in the first and second causes of action had not been previously adjudicated in the first 

lawsuit. As to the third and fourth causes of action, the trial court had previously ruled 

that they arose from Glendora’s breach of the CC&Rs, the allegations regarding the liens 

were merely incidental, and the issues had not been previously adjudicated because they 

encompassed actions after the trial in the first lawsuit.

The trial court denied the motion to strike on April 23, 2015, adopting its tentative 

ruling. Glendora filed a timely notice of appeal.

DISCUSSION

Section 425.16, known as the anti-SLAPP statute, authorizes the early dismissal of 

SLAPP actions, and “‘SLAPP’ is an acronym for ‘strategic lawsuit against public 
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participation.”” (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 

1244, fn. 1.) Section 426.16, subdivision (b)(1) provides: “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.” The statute allows for the summary disposition of 

meritless lawsuits intended “‘to chill or punish a party’s exercise of constitutional rights 

to free speech and to petition the government for redress of grievances.’” (Paiva v. 

Nichols (2008) 168 Cal.App.4th 1007, 1015.)

“When ruling on an anti-SLAPP motion, the trial court employs a two-step 

process. It first looks to see whether the moving party has made a prima facie showing 

that the challenged causes of action arise from protected activity. [Citation.] If the 

moving party meets this threshold requirement, the burden then shifts to the other party to 

demonstrate a probability of prevailing on its claims. [Citations.] 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).) Our review is de novo.” (Drell v. Cohen (2014) 232 Cal.App.4th 24, 29.) 

If Glendora, as the party moving to strike, does not make “a prima facie showing that one 

or more causes of action arise from an act in furtherance of the constitutional right of 

petition or free speech in connection with a public issue,” the motion must be denied. 

(Ibid.) “Statements made in litigation, or in connection with litigation, are protected by 

section 425.16.” (Ibid.) Nevertheless, “[i]t is not enough to establish that the action was 

filed in response to or in retaliation for a party’s exercise of the right to petition. 

[Citations.] Rather, the claim must be based on the protected petitioning activity. 

[Citation.] [¶] When a cause of action involves both protected and unprotected activity, 

the court looks to the gravamen of the claim to determine if the claim is a SLAPP. 

[Citation.] Protected conduct which is merely incidental to the claim does not fall within 

the ambit of section 425.16. [Citations.] Where the protected activity will only be used 
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as evidence in the case, and no claim is based on it, the protected activity is only 

incidental to the claims.” (Ibid.)

Route 66’s second amended complaint is not based on protected activity.

The parties dispute whether the recording of the liens was protected petitioning 

activity under the anti-SLAPP statute. Glendora argues that a notice of foreclosure that 

alerts the plaintiff to an impending foreclosure sale is not a protected petitioning activity 

for purposes of the SLAPP statute, as it is a purely private transaction initiating 

nonjudicial foreclosure. (Garretson v. Post (2007) 156 Cal.App.4th 1508, 1522–1523, 

1524.) The CC&Rs provide that a creditor owner is entitled to record a lien against the

parcel of a defaulting owner, which “may be foreclosed judicially or non-judicially.” But

Glendora did not initiate a foreclosure, judicial or nonjudicial, and recordation of a lis 

pendens in connection with issues under consideration in a judicial proceeding is 

protected activity for the purpose of the anti-SLAPP statute. (La Jolla Group II v. Bruce 

(2012) 211 Cal.App.4th 461, 471.) Glendora recorded its first lien after Route 66 filed 

this lawsuit in December 2013 seeking in part to enjoin Glendora from recording the 

notice of default. Two days later, the court issued a preliminary injunction restraining 

Glendora from filing a lien in that amount. Glendora then issued a second notice of 

default for a lesser amount stating that the previous lien was superseded, and even after 

Route 66 paid the lesser amount under protest, Glendora recorded another lien for that 

amount. Glendora eventually released the lien under court order. We conclude that 

Glendora’s recordation of the liens were in the course of this lawsuit and in connection 

with the issues in the SAC, and therefore were protected conduct.

Although Glendora’s assertion of a lien in connection with litigation is protected 

conduct, “a complaint is not a SLAPP suit unless the gravamen of the complaint is that 

defendants acted wrongly by engaging in the protected activity.” (Drell v. Cohen, supra, 

232 Cal.App.4th at p. 30.) Route 66’s SAC set out eight pages describing Glendora 

Courtyard, the parties’ respective interests, the CC&Rs, the provisions regarding the 

parties’ responsibilities for the common area expenses, the role of the maintenance 

director, Route 66’s right to audit the books of the maintenance director (Glendora), 
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Route 66’s discovery of Glendora’s purported overcharging, breaches by Glendora in 

calculating and allocating the monthly charges and in failing to provide a timely 

estimated budget, Route 66’s payment of the actual monthly maintenance charges, the 

dispute in the prior lawsuit over the monthly charges, Glendora’s mailing of the notice of 

default for $171,330.27, and its threat to file a lien (as allowed under the CC&Rs). The 

SAC is grounded on the underlying controversy between Route 66 and Glendora 

regarding Glendora’s purported breach of the CC&Rs and its overcharging of the 

monthly maintenance fees. The first two causes of action request a declaration regarding 

Route 66’s rights under the CC&Rs and an injunction preventing Glendora from 

recording another notice of default.

Route 66 also requests that the court remove Glendora as maintenance director in 

the third cause of action. Of 20 subparagraphs listing grounds for removal,

subparagraphs (l) and (q) mention Glendora’s serving the initial notice of default for 

$171,330.27 and its filing of the lien for $57,360.67 after Route 66 had paid that amount 

under protest. Subparagraph (s) alleges that Glendora fraudulently notified Route 66 that 

the city had directed Glendora’s attorney to replace some of the landscaping and replace a 

sprinkler system with drip irrigation, when the city had not done so. These three 

subparagraphs do not describe elements of the claims in issue. As we explained above, 

“that a cause of action arguably may have been ‘triggered’ by protected activity does not 

entail it is one arising from such. [Citation.] In the anti-SLAPP context, the critical 

consideration is whether the cause of action is based on the defendant’s protected free 

speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) The 

fourth cause of action requests restitution of the sum Route 66 paid Glendora, and an 

accounting.

Route 66’s SAC is not based on protected conduct. The liens and the single

communication between the city and Glendora’s attorney are incidental to Route 66’s 

underlying claims, which concern the CC&Rs and the actions of Glendora as 

maintenance director. “None of the purposes of the anti-SLAPP statute would be served 
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by elevating a [monthly charges] dispute to the constitutional arena.” (Drell v. Cohen, 

supra, 232 Cal.App.4th at p. 30.)

Glendora argues that all Route 66’s claims other than those related to the liens 

were decided on the merits in the prior lawsuit when the trial court granted Glendora’s 

motion for judgment pursuant to section 631.8, which provides in subdivision (c) that a 

judgment after the grant of the motion operates as an adjudication on the merits, unless 

otherwise specified in the order for judgment. Glendora argues that as a result, only its

protected activity remains as a basis for the lawsuit. The record in this appeal contains 

the trial court’s statement of decision in the prior lawsuit, which states only that the court

granted Glendora’s motion for judgment on Route 66’s claims for breach of contract, the 

covenant of good faith and fair dealing, and fiduciary duty. Nothing in the record

indicates what contractual issues were raised and adjudicated in the prior lawsuit. We 

note again that in denying summary judgment in the current lawsuit, the trial court 

rejected Glendora’s contention that Route 66’s claims had already been adjudicated.

Because the SAC did not arise from protected activity, we do not need to consider 

whether Route 66 has demonstrated a probability that it will prevail. (Talega 

Maintenance Corp. v. Standard Pacific Corp. (2014) 225 Cal.App.4th 722, 735.)

DISPOSITION

The order is affirmed. Route 66 CPAs, LLC is to recover costs on appeal.

NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

CHANEY, Acting P. J.

LUI, J.