Filed 2/28/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

RICHARD C. COLYEAR,

Plaintiff and Appellant,

v.

ROLLING HILLS COMMUNITY 

ASSOCIATION OF RANCHO PALOS 

VERDES et al.,

Defendants and Respondents.

 B270396

 (Los Angeles County

 Super. Ct. No. BS150539)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Robert Leslie Hess, Judge. Affirmed.

Law Offices of Michael D. Berk, Michael D. Berk; Greines, 

Martin, Stein & Richland, Kent Richland and Jonathan H. 

Eisenman for Petitioner and Appellant.

Hanson Bridgett, Christopher David Jensen; Alice Liu 

Jensen for Defendant and Respondent Yu Ping Liu.
2

INTRODUCTION

Defendant homeowner Yu Ping Liu submitted an 

application to his homeowners association, defendant Rolling 

Hills Community Association of Rancho Palos Verdes (HOA), 

seeking to invoke the HOA’s dispute resolution process against a 

neighbor who refused to trim trees blocking Liu’s view. Plaintiff 

Richard Colyear, another neighbor and HOA member, sued Liu 

and the HOA, alleging that two of the offending trees were 

actually on his property, that the relevant tree-trimming 

covenant did not encumber his property, and therefore that Liu 

and the HOA were wrongfully clouding his title by seeking to 

apply such an encumbrance. Liu filed a special motion to strike 

the claims alleged against him under Code of Civil Procedure 

section 425.16, the anti-SLAPP statute.1 The trial court granted 

the motion and Colyear now appeals.

We conclude Liu has made a prima facie showing that 

Colyear’s complaint arises from Liu’s statements made in 

connection with an issue of public interest, and therefore Liu’s 

statements are protected under section 425.16, subdivision (e)(4) 

(section 425.16(e)(4)). In addition, Colyear cannot show a

probability of success on the merits of his claims against Liu, 

particularly because Liu dismissed his application shortly after 

the lawsuit was filed and has never sought to invoke the HOA’s 

tree-trimming process against Colyear. We therefore affirm.

 

1 SLAPP is an acronym for Strategic Lawsuit Against 

Public Participation. All further statutory references are to the 

Code of Civil Procedure unless stated otherwise.
3

FACTUAL AND PROCEDURAL HISTORY

A. Background

Liu and Colyear are both homeowners in Rancho Palos 

Verdes, a planned residential community in the city of Rolling 

Hills. The property immediately north of Liu’s property is owned 

by Richard and Kathleen Krauthamer. Colyear’s property is 

directly east of the Krauthamer’s property, and kitty-corner to 

Liu’s property. Liu, Colyear, and the Krauthamers are all 

members of the HOA. 

Each home within the community is subject to a 

declaration of covenants, conditions, and restrictions (CC&Rs). 

The original declaration recorded in 1936, Declaration 150, set 

forth the specific property to be included in the community, 

conferred authority on the HOA to (among other things) 

“interpret and enforce” the CC&Rs, and detailed a number of 

CC&Rs applicable to the specified lots. As relevant here, in 

article I, section 11, Declaration 150 conferred upon the HOA 

“the right at any time to enter on or upon any part” of a property 

subject to that declaration “for the purpose of cutting back trees 

or other plantings which, in the opinion of the [HOA], is 

warranted to maintain and improve the view of, and protect, 

adjoining property.” 

As the community expanded, the HOA entered into new 

declarations covering the additional properties; those 

declarations contained provisions that were similar, but not 

identical, to Declaration 150. Declaration 150-M, recorded in 

1944, added the property including the lots now owned by Liu, 

Colyear, and the Krauthamers. Liu does not dispute that these 

three lots are burdened by Declaration 150-M, rather than by 

Declaration 150, and that 150-M does not contain a provision 
4

similar to that in Declaration 150 regarding tree trimming.2 

According to Colyear, Declaration 150 applies to approximately 

84 lots, Declaration 150-M applies to approximately 14 lots, and 

other declarations cover an additional 657 lots. Ultimately, the 

community subject to HOA jurisdiction grew to encompass the 

same boundaries as the city of Rolling Hills. (See Russell v. Palos 

Verdes Properties (1963) 218 Cal.App.2d 754, 758, disapproved of 

on another ground by Citizens for Covenant Compliance v. 

Anderson (1995) 12 Cal.4th 345.)

The HOA is governed by a board of directors. Starting in 

1997, the board adopted resolutions to “establish procedures for 

its members to utilize the authority of the [HOA] to correct view 

impairments created by trees or other plantings.” The board 

adopted the most recent version, Resolution 220, in 2012. 

Resolution 220 quoted the tree-trimming provision in article I, 

section 11 of Declaration 150 and stated that it “applies to some, 

if not all, properties in the City of Rolling Hills.” Resolution 220 

further made the following findings: “WHEREAS, the [HOA] has 

held public meetings, circulated drafts of policy alternatives, and 

received numerous written and oral communications from its 

members; [¶] WHEREAS, Rolling Hills enjoys both beautiful 

views and an abundance of mature trees, and values both . . . ; 

[¶] WHEREAS, the [HOA] wishes to adopt both guidelines and 

establish procedures for its members to utilize the authority of 

the [HOA] to correct view impairments, which cannot be resolved 

between the parties; [¶] WHEREAS, the Deed Restrictions give 

the [HOA] ‘. . . the authority to exercise such powers of control, 

 

2 Whether other, more general language in Declaration 150-

M could be applied to confer the same authority, as Liu seems to 

suggest, is not at issue in this appeal.
5

interpretation, construction, consent, decision, determination . . . 

and/or enforcement of covenants . . . as far as may legally be 

done.’” Based on these and other findings, Resolution 220 

established guidelines for processing “all view impairment 

applications” submitted to the HOA, including submission of an 

application by the homeowner requesting tree removal, payment 

by the applicant of an administrative fee and agreement to pay 

the entire cost of tree trimming or removal, notice sent by the 

HOA to the affected owner and contiguous property owners, a 

decision and report by a View Committee, and a process by which 

to appeal that decision to the board. Resolution 220 also noted 

that the “City of Rolling Hills Ordinance Chapter 17.26 provides 

a procedure for abatement of view impairment; so [HOA] 

members have another alternative for view restoration.” 

As early as 2002, Colyear began to inquire of the board 

(based on the predecessor to Resolution 220) whether it was the 

HOA’s position that the tree-trimming provision was enforceable 

against his lot. At the time, he was told it was not, and he would 

“have to use the City’s Ordinance” to settle any view disputes. 

B. Liu’s Application and Colyear’s Complaint

In January 2015, in accordance with the process outlined in 

Resolution 220, Liu filed an “Application for Assistance to 

Restore View” with the HOA, identifying the Krauthamer 

property as the location of the obstructing trees or shrubs. In a 

statement attached to the application, Liu explained that the 

view from his residence was obstructed by several trees and 

hedges on the south side of the Krauthamers’ property. He said

he had attempted to resolve the issue by speaking to Richard 

Krauthamer starting in late 2012, and by contacting the HOA’s 

city manager in June 2013 and requesting that she informally 
6

mediate the dispute. As a result, according to Liu, Krauthamer 

agreed to trim his trees but never did so. Liu also attached to his 

application several photographs of the offending trees and 

hedges. The application does not reference Colyear or Colyear’s 

property.

As an adjoining property owner, Colyear received notice of 

Liu’s application shortly after it was submitted. Colyear then 

filed the instant action on March 4, 2015, seeking writ relief and 

naming Liu, the HOA, its board, and individual board members 

as respondents. Colyear alleged that Liu’s application “may 

implicate” trees on Colyear’s property, but did not otherwise seek 

relief from Liu. 

Liu withdrew his application to the HOA on April 14, 2015. 

As a result, the HOA never issued any decision on the 

application. Following the withdrawal, the HOA had no pending 

applications involving either Liu or Colyear’s property. 

In August 2015, the trial court sustained the demurrers 

filed by all defendants, and granted leave to amend. Colyear filed 

an amended pleading, including a petition for writ of traditional 

mandate and prohibition against the HOA and its board, and a 

verified complaint “for Declaratory Relief, Injunctive Relief, To 

Quiet Title, and for Damages” against all defendants (FAC). The 

FAC sought a declaration, among other things, that Colyear’s lot 

was not subject to the tree-trimming covenant in Declaration 150 

and that such covenant could not be enforced against his lot or 

other lots not encumbered by that declaration, and that 

Resolution 220 was void to the extent it purported to enforce such 

tree-trimming covenants in this manner. Colyear further alleged 

that some of the offending trees designated by Liu on the photos 

attached to his application were on Colyear’s lot, thus Liu “sought 
7

to apply the Liu Application to cut back trees and plantings on 

Colyear’s lot.” Moreover, although Liu had withdrawn his 

application, Colyear alleged that Liu “expressly refused to 

acknowledge and agree” that he would not in the future “seek to 

enforce the Trees and Plantings Covenant against Colyear’s lot.” 

The FAC also sought to quiet title “to Colyear’s lot against 

adverse claims” by defendants “in that each claims that Colyear’s 

lot is covered by the Trees and Plantings Covenant in 

Declaration150, although Colyear’s lot is not covered by the Trees 

and Plantings Covenant, and seeks, or claims the right to seek, to 

enforce the Trees and Plantings Covenant against Colyear’s lot.” 

In addition, the FAC sought injunctive relief barring defendants 

from seeking to enforce the relevant covenant against Colyear’s 

lot or any other lots not encumbered by Declaration 150, as well 

as compensatory and punitive damages from the HOA and the 

board for alleged fraud and breaches of fiduciary duties. 

C. Liu’s Anti-SLAPP Motion

Liu filed a special motion to strike the FAC pursuant to 

section 425.16, arguing that his view impairment application was 

protected under section 425.16(e)(4), as it constituted a written 

statement made in connection with an issue of public interest.3

Further, he asserted Colyear could not establish a probability of 

success on his claims based on standing, mootness, and ripeness 

grounds. 

 

3 Liu’s motion also stated in passing that his conduct should 

be protected under section 425.16(e)(2) as a statement “made in

connection with an issue under consideration or review” by an 

“official proceeding authorized by law,” but offered no other 

argument or citation on this point. 
8

Colyear opposed the motion to strike, arguing that Liu’s 

application to the HOA involved a private matter and thus was 

not protected conduct and that Colyear’s lawsuit did not arise out 

of the application, but rather from the “underlying controversy” 

regarding the proper application of Declaration 150. In his 

accompanying declaration, Colyear stated he had “confirmed” 

that two of the trees identified in Liu’s application were located 

on Colyear’s lot. Specifically, Colyear declared, “I [have] carefully 

reviewed the photograph or photographs attached to the Liu 

Application . . . which . . . has arrows added to it to point to trees 

that Liu requested to be cut. . . . I also walked my lot and the 

Krauthamers’ lot in the area where both lots meet the Liu 

property. Based on those observations, I now know for a fact that 

the trees and plantings that Liu claims in the Liu Application 

should be cut include two trees on my lot.”4 Colyear also declared 

his belief that “the Board’s acceptance of the Liu Application and 

initiation of proceedings for enforcement of the Trees and 

Plantings Covenant on behalf of Liu . . . clouds and encumbers 

the title to the Krauthamers’ lot and to my lot, as well as such 

other lots and decreases the utility and market value of those 

lots.” The Krauthamers both submitted declarations stating they 

“believed” one or two of the trees at issue was on Colyear’s lot. 

Colyear attached numerous exhibits in support of his 

opposition, including Declarations 150 and 150-M, Resolution 220 

 

4 The trial court subsequently granted Liu’s objections to 

multiple paragraphs in Colyear’s declaration, including these 

statements regarding the placement of two trees. During oral 

argument, the court noted Colyear’s declaration provided no 

foundation for how Colyear “knew where the boundary line” lay 

between his and the Krauthamers’ property and that Colyear’s 

statements were conclusory. 
9

and its predecessors, and Liu’s application. He also attached his 

correspondence to the board in 2002, as well as letters from 

several other homeowners on the same issue. In a letter dated 

September 4, 2002, addressed to the board and the attorney for 

the HOA, homeowner Philip Belleville referenced his 

presentation made at a prior hearing “on the proposed Resolution 

concerning trees and view,” and then reiterated his position that 

the proposed resolution should not purport to apply to all 

properties, including those not encumbered with a tree-trimming 

provision in the applicable CC&Rs. Belleville noted that, while 

he does “not have a view to protect,” he was nevertheless “vitally 

interested” in the issue, including the potential for exposure to 

expensive litigation against the HOA resulting in increased fees 

to the members and because “[i]t is very disturbing that the 

proposed Resolution exceeds the norms for such provisions of 

similar communities.” Belleville sent another letter in late 2005 

objecting to proposed changes in Resolution 181 (a predecessor to 

220), noting that the prior resolution had been adopted “after 

numerous hearings and public participation” and again objecting 

to language that could “wrongly cloud the property rights of the 

Members involved” and “lead to more costly and alienating 

litigation.” Another homeowner wrote a similar letter in 2015. 

The trial court granted Liu’s motion. First, the court found 

Liu had met his burden to establish his conduct was protected 

under section 425.16(e)(4) because “the issue of view” was one of 

“general concern” to the homeowners in the community. Liu was 

“attempting to invoke the view covenants in his particular favor, 

but they are view covenants that impact, if not all, then a 

significant number of the people in this community association.” 

The trial court further found that Colyear’s lawsuit arose out of 
10

Liu’s protected conduct, noting that Liu’s application was the 

reason Colyear filed this action. Finally, the court found that 

Colyear had not carried his burden to show probability of success 

on the merits, particularly following the dismissal of Liu’s 

application. 

Colyear timely appealed the granting of the motion to 

strike.

DISCUSSION

I. Section 425.16 and Standard of Review

“A SLAPP is a civil lawsuit that is aimed at preventing 

citizens from exercising their political rights or punishing those 

who have done so. ‘“While SLAPP suits masquerade as ordinary 

lawsuits such as defamation and interference with prospective 

economic advantage, they are generally meritless suits brought 

primarily to chill the exercise of free speech or petition rights by 

the threat of severe economic sanctions against the defendant, 

and not to vindicate a legally cognizable right.”’ [Citations.]” 

(Simpson Strong–Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21 

(Simpson ).) 

The Legislature has declared that “it is in the public 

interest to encourage continued participation in matters of public 

significance, and . . . this participation should not be chilled 

through abuse of the judicial process.” (§ 425.16, subd. (a).) To 

this end, the Legislature enacted section 425.16, subdivision 

(b)(1), which authorizes the filing of a special motion to strike for 

“[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.” [T]he Legislature 

expressly provided that the anti-SLAPP statute ‘shall be 
11

construed broadly.’ (§ 425.16, subd. (a).)” (Simpson, supra, 49 

Cal.4th at p. 21.)

Analysis of a motion to strike pursuant to section 425.16 

involves a two-step process. (Simpson, supra, 49 Cal.4th at p. 

21.) “First, the defendant must make a prima facie showing that 

the plaintiff’s ‘cause of action . . . aris[es] from’ an act by the 

defendant ‘in furtherance of the [defendant’s] right of petition or 

free speech . . . in connection with a public issue.’ (§ 425.16, subd. 

(b)(1).) If a defendant meets this threshold showing, the cause of 

action shall be stricken unless the plaintiff can establish ‘a 

probability that the plaintiff will prevail on the claim.’ [Ibid.]” 

(Simpson, supra, 49 Cal.4th at p. 21, fn. omitted.) “Only a cause 

of action that satisfies both prongs of the anti-SLAPP statute—

i.e., that arises from protected speech or petitioning and lacks 

even minimal merit—is a SLAPP, subject to be stricken under 

the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

We review a trial court’s decision on a special motion to 

strike de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) In 

engaging in the two-step process, we consider “the pleadings, and 

supporting and opposing affidavits stating the facts upon which 

the liability or defense is based.” (§ 425.16, subd. (b)(2).) 

“However, we neither ‘weigh credibility [nor] compare the weight 

of the evidence. Rather, [we] accept as true the evidence 

favorable to the plaintiff [citation] and evaluate the defendant’s 

evidence only to determine if it has defeated that submitted by 

the plaintiff as a matter of law.’ [Citation.]” (Soukup v. Law 

Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 

(Soukup).)
12

II. Liu’s Claims Arise From Protected Activity 

Under the first prong of a motion to strike under section 

425.16, the moving party has the burden of showing that the 

cause of action arises from an act in furtherance of the right of 

free speech or petition—i.e., that it arises from a protected 

activity. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) Thus, the 

moving party must establish both (1) that its act constituted 

protected activity; and (2) the opposing party’s cause of action 

arose from that protected activity. Colyear challenges Liu’s 

showing on both of these steps, so we examine each in turn.

A. Protected Activity

First, we must determine whether Liu’s speech was in fact 

protected conduct. To meet this burden, Liu must demonstrate 

that his statements fit one of the four categories of conduct set 

forth in section 425.16, subdivision (e): “(1) any written or oral 

statement or writing made before a legislative, executive, or 

judicial proceeding, or any other official proceeding authorized by 

law; (2) any written or oral statement or writing made in 

connection with an issue under consideration or review by a 

legislative, executive, or judicial body, or any other official 

proceeding authorized by law; (3) any written or oral statement 

or writing made in a place open to the public or a public forum in 

connection with an issue of public interest; or (4) any other 

conduct in furtherance of the exercise of the constitutional right 

of petition or the constitutional right of free speech in connection 

with a public issue or an issue of public interest.”

Liu asserts his conduct is protected under subdivision (e)(2) 

as a statement made in connection with an “official proceeding 

authorized by law,” or, alternatively, under subdivision (e)(4) as a 

statement made in connection with “an issue of public interest.” 
13

We agree that Liu’s conduct here is protected by section 

425.16(e)(4); thus, we need not reach the issue of whether the 

HOA process is an “official proceeding” under subdivision (e)(2).

Colyear argues that Liu’s application involved a private 

tree-trimming dispute between two neighbors and therefore does 

not qualify as a matter of “public interest.” “Section 425.16 does 

not define ‘an issue of public interest.’ Nevertheless, the statute 

requires the issue to include attributes that make it one of public, 

rather than merely private, interest. [Citation.] A few guiding 

principles can be gleaned from decisional authorities. For 

example, ‘public interest’ is not mere curiosity. Further, the 

matter should be something of concern to a substantial number of 

people. Accordingly, a matter of concern to the speaker and a 

relatively small, specific audience is not a matter of public 

interest. Additionally, there should be a degree of closeness 

between the challenged statements and the asserted public 

interest. The assertion of a broad and amorphous public interest 

that can be connected to the specific dispute is not sufficient. 

[Citation.] One cannot focus on society’s general interest in the 

subject matter of the dispute instead of the specific speech or 

conduct upon which the complaint is based.” (Grenier v. Taylor

(2015) 234 Cal.App.4th 471, 481 (Grenier).) Cases that have 

found an issue of public interest have done so where “the subject 

statements either concerned a person or entity in the public eye 

[citations], conduct that could directly affect a large number of 

people beyond the direct participants [citations] or a topic of 

widespread, public interest [citation].” (Rivero v. American 

Federation of State, County and Municipal Employees, AFL–CIO

(2003) 105 Cal.App.4th 913, 924 (Rivero).)
14

Within these parameters, “‘public interest’ within the 

meaning of the anti-SLAPP statute has been broadly defined to 

include, in addition to government matters, ‘“private conduct that 

impacts a broad segment of society and/or that affects a 

community in a manner similar to that of a governmental 

entity.”’ (Du Charme v. International Brotherhood of Electrical 

Workers (2003) 110 Cal.App.4th 107, 115.)” (Ruiz v. Harbor View 

Community Assn. (2005) 134 Cal.App.4th 1456, 1468 (Ruiz).) 

“[I]n cases where the issue is not of interest to the public at large, 

but rather to a limited, but definable portion of the public (a 

private group, organization, or community), the constitutionally 

protected activity must, at a minimum, occur in the context of an 

ongoing controversy, dispute or discussion, such that it warrants 

protection by a statute that embodies the public policy of 

encouraging participation in matters of public significance.” (Du 

Charme, supra, 110 Cal.App.4th at p. 119; see also Grenier, 

supra, 234 Cal.App.4th at p. 482.) 

Applying these principles, several courts have found 

protected conduct in the context of disputes within a homeowners 

association. In Ruiz, for example, a homeowner sued his 

homeowners association alleging letters written by association 

counsel defamed him. (Ruiz, supra, 134 Cal.App.4th at p. 1463-

1465.) The letters concerned a dispute over the association’s 

rejection of Ruiz’s building plans, and Ruiz’s complaints that the 

association was not applying its architectural guidelines

evenhandedly. (Ibid.) The court concluded the letters fell within 

section 425.16(e)(4), noting, (a) the letters were written during an 

ongoing dispute between Ruiz and the association over denial of 

Ruiz’s plans and the application of the association’s architectural 

guidelines, and (b) the dispute was of interest to a definable 
15

portion of the public, i.e., residents of 523 lots, because they 

“would be affected by the outcome of these disputes and would 

have a stake in [association] governance.” (Id. at pp. 1467-1469.) 

Moreover, the attorney’s letters “were part of the ongoing 

discussion over those disputes and ‘contribute[d] to the public 

debate’ on the issues presented by those disputes. [Citation.]” 

(Id. at p. 1469.) 

Similarly, in Country Side Villas Homeowners Assn. v. Ivie

(2011) 193 Cal.App.4th 1110, 1113, the homeowner raised 

objections with her homeowners association over a change in 

practices regarding whether individual homeowners or the 

association had responsibility to pay for maintaining balconies 

and siding on individual units. The association filed suit against 

Ivie, seeking declaratory relief in interpreting the association’s 

governing documents regarding maintenance obligations. (Ibid.) 

The court found that Ivie’s complaints to the board were a matter 

of public interest, because her statements concerned issues “that 

affected all members of the association,” including whether all 

members would have to pay for maintenance costs assumed by 

the association. (Id. at p. 1118; see also Damon v. Ocean Hills 

Journalism Club (2000) 85 Cal.App.4th 468, 479 [protecting 

allegedly defamatory statements about the competence of a 

manager of a homeowners association]; Lee v. Silveira (2016) 6 

Cal.App.5th 527, 540 [protecting complaints by homeowners

association board members against other board members 

regarding board’s decision-making process in approving a large 

roofing project and a management company contract, as affecting 

“a broad segment, if not all,” association members]; Grenier, 

supra, 234 Cal.App.4th at p. 483 [defamatory statements 

accusing church pastor of theft and misuse of church funds, and 
16

of abuse, are of interest to the church’s 500 or more members, 

and therefore are of “public interest”]; Ludwig v. Superior Court

(1995) 37 Cal.App.4th 8, 15 [concluding that development of a 

mall, “with potential environmental effects such as increased 

traffic and impaction on natural drainage, was clearly a matter of 

public interest”].) By contrast, in Rivero, supra, 105 Cal.App.4th 

at p. 924, the court rejected anti-SLAPP protection for complaints 

in a union newsletter alleging a janitorial supervisor mistreated 

his employees. The court held that the allegedly defamatory 

statements were not a matter of public interest as they concerned 

“the supervision of a staff of eight custodians by Rivero, an 

individual who had previously received no public attention.” 

(Ibid.)

Here, the record presents sufficient evidence to sustain 

Liu’s burden that at the time he submitted his application, there 

was an ongoing controversy, dispute, or discussion regarding the 

applicability of tree-trimming covenants to lots not expressly 

burdened by them, and the HOA’s authority to enforce such 

covenants. While the evidence in the record is somewhat sparse,

it is sufficient to show that the issue was an ongoing topic of 

debate between the board and homeowners, resulting in multiple 

hearings, letters, and several changes to the board’s policy on the 

matter starting as early as 2002 and continuing up to the current 

dispute. In this context, Liu’s application sought to invoke the 

HOA process at the center of that dispute, as he invoked the 

process under Resolution 220 to request authority from the board 

to trim trees on a neighbor’s property that admittedly was not 

expressly burdened by Declaration 150. Indeed, this is the crux 

of Colyear’s argument for injecting himself into this dispute—

that Liu’s conduct in submitting the application unleashed a 
17

process unfair to Colyear and all other homeowners not subject to 

a tree-trimming covenant and thereby clouded his title with an 

improper encumbrance. As such, Colyear’s current suggestion 

that Liu’s application involves nothing more than a private treetrimming dispute between two neighbors is unavailing. 

Colyear does not dispute that the issue of the board’s 

authority to apply tree-trimming covenants to all lots in the 

community is a subject of interest to the entire membership of 

the community, and therefore meets the definition of “public 

interest” under section 425.16(e)(4). (See, e.g., Damon, supra, 85 

Cal.App.4th at p. 479 [“Although the allegedly defamatory 

statements were made in connection with the management of a 

private homeowners association, they concerned issues of critical 

importance to a large segment of our local population. ‘For many 

Californians, the homeowners association functions as a second 

municipal government. . . .’ [Citation.]”].) Instead, he argues 

that the proper focus for this step in the anti-SLAPP inquiry 

must be much narrower, and that here, Liu’s application only 

directly involved two homeowners—Liu and the Krauthamers—

and was therefore a private dispute rather than an issue of public 

interest. Colyear further asserts that to the extent his complaint 

raised the broader issues of enforceability of the tree-trimming 

covenant and HOA governance, his conduct cannot serve to 

insulate Liu’s statements. We agree with the principle that we

must avoid looking to “society’s general interest in the subject 

matter of the dispute instead of the specific speech or conduct 

upon which the complaint is based.” (World Financial Group, 

Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 

Cal.App.4th 1561, 1570; see also Commonwealth Energy Corp. v. 

Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34 
18

[cautioning against the “synecdoche theory of public issue in the 

anti-SLAPP statute,” where “[t]he part [is considered] 

synonymous with the greater whole”].) 

However, we are not persuaded that Liu’s statement here 

lacks the requisite degree of closeness with the asserted public 

interest. As discussed, Liu’s application itself invoked the same 

HOA processes that Colyear (and other community members) 

sought to challenge. The cases rejecting anti-SLAPP protection 

on this basis involve a much greater level of abstraction to a 

“broad and amorphous public interest,” and are thus 

distinguishable. (WFG, supra, 172 Cal.App.4th at p. 1570 

[rejecting defendants’ attempt to tie their conduct—allegedly 

reaching out to their former employer’s customers to promote a 

competitor business—to broader issues of employee mobility and 

competition]; see also, e.g., Consumer Justice Center v. Trimedica 

International, Inc. (2003) 107 Cal.App.4th 595, 601 [“Trimedica’s 

speech is not about herbal supplements in general. It is 

commercial speech about the specific properties and efficacy of a 

particular product.”]; Commonwealth, supra, 110 Cal.App.4th at 

p. 34 [“hawking an investigatory service is not an economics 

lecture on the importance of information for efficient markets”].) 

Accordingly, we conclude Liu has established he made a 

statement in connection with an issue of public interest within 

the meaning of section 425.16(e)(4).

B. Claim Arises From Protected Activity

We next turn to Colyear’s claim that, even if Liu’s 

statement was protected, Colyear’s complaint did not arise out of 

that statement. We disagree.

“Our Supreme Court has recognized the anti-SLAPP 

statute should be broadly construed [citation] and that a plaintiff 
19

cannot avoid operation of the anti-SLAPP statute by attempting, 

through artifices of pleading, to characterize an action as a 

garden variety tort or contract claim when in fact the claim is 

predicated on protected speech or petitioning activity. [Citation.] 

Accordingly, we disregard the labeling of the claim [citation] and 

instead ‘examine the principal thrust or gravamen of a plaintiff’s 

cause of action to determine whether the anti-SLAPP statute 

applies’. . . . [Citation.]” (Hylton v. Frank E. Rogozienski, Inc.

(2009) 177 Cal.App.4th 1264, 1271-1272.) We assess the 

principal thrust by identifying “[t]he allegedly wrongful and 

injury-producing conduct . . . that provides the foundation for the 

claim.” (Martinez v. Metabolife Internat., Inc. (2003) 113 

Cal.App.4th 181, 189.) “If the core injury-producing conduct upon 

which the plaintiff’s claim is premised does not rest on protected 

speech or petitioning activity, collateral or incidental allusions to 

protected activity will not trigger application of the anti-SLAPP 

statute. [Citation.]” (Hylton, supra, 177 Cal.App.4th at p. 1272.) 

“[T]he critical point is whether the plaintiff’s cause of action itself 

was based on an act in furtherance of the defendant’s right of 

petition or free speech.” (City of Cotati v. Cashman (2002) 29 

Cal.4th 69, 78.) “In other words, ‘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.]’”

(Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton 

LLP (2005) 133 Cal.App.4th 658, 670.)

Colyear argues that the dispute here arose from “the 

question of the applicability of a tree-trimming covenant”; 

conversely, he argues, “Liu’s application to enforce the covenant 

against Colyear’s property was simply the trigger for Colyear’s 

suit to resolve that question.” He further notes that the trial 
20

court’s reliance on “but-for causation” in analyzing the issue was 

therefore in error. To the extent the trial court focused on 

whether Liu’s application caused Colyear to file a lawsuit, such 

an analysis would provide an insufficient basis from which to find 

that Liu had established the lawsuit arose out of his protected 

conduct. Based on our independent review, however, we conclude 

that Liu did make the requisite showing. 

Liu’s application did not simply “trigger” Colyear’s lawsuit, 

as Colyear claims. Rather, the gravamen of Colyear’s claims 

against Liu was the allegation that by submitting an application 

to the HOA concerning property unencumbered by Declaration 

150, Liu invoked an invalid HOA process and clouded Colyear’s 

title. As such, the only injury-producing conduct Colyear alleges 

Liu committed was Liu’s petitioning act. 

These circumstances are factually distinct from cases, 

including those cited by Colyear, in which the defendant’s 

protected speech was ancillary to the heart of the plaintiff’s 

claims. In City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 71, 

72 for example, owners of mobilehome parks brought a 

declaratory relief action against the city in federal court seeking 

a judicial determination that the city's mobilehome park rent 

control ordinance constituted an unconstitutional taking. In 

response, the city sued the park owners in state court, also 

requesting a declaration regarding the constitutionality and 

enforceability of the rent control ordinance. (Id. at p. 72.) The 

city conceded that its state lawsuit was triggered by the federal 

action and was an attempt to “gain a more favorable forum” in 

which to litigate the issue. (Id. at p. 73.) As the Supreme Court 

explained, “the mere fact an action was filed after protected 

activity took place does not mean it arose from that activity.” (Id. 
21

at pp. 76–77.) Instead, because the “fundamental basis” for both

actions was the “same underlying controversy respecting [the 

rent control] ordinance,” the city’s lawsuit “therefore was not one 

arising from [the park owners'] federal suit” and “was not subject 

to a special motion to strike.” (Id. at p. 80; see also, e.g., Talega 

Maintenance Corporation v. Standard Pacific Corporation (2014) 

225 Cal.App.4th 722, 729 [homeowners association’s claim 

against board members arose from “the act of spending money in 

violation of [the board members’] fiduciary duties,” not from the 

vote that precipitated such expenditure]; McConnell v. Innovative 

Artists Talent and Literary Agency, Inc. (2009) 175 Cal.App.4th 

169, 176-177 [talent agents’ claims against former employer for 

retaliation and wrongful termination were based on employer’s 

course of conduct preventing the agents from performing their 

work, not the letter that communicated the purported job 

modifications]; Martinez, supra, 113 Cal.App.4th at p. 189 

[holding that “the gravamen of Plaintiffs’ second cause of action, 

alleging the Product was not merchantable because it contained 

dangerous properties and ingredients that caused injury, is based 

on the nature and effects of the Product itself, not the marketing 

efforts undertaken by” the defendant].) Here, by contrast, Liu’s 

protected conduct—his application to the HOA—served as the 

foundation for Colyear’s claims against him.

In sum, we conclude that Liu met his burden on the first 

prong of the anti-SLAPP motion to strike. We therefore turn to 

the second prong, i.e., whether Colyear met his burden to 

demonstrate a probability of prevailing on his claims against Liu.
22

III. Colyear Cannot Demonstrate a Probability of 

Prevailing Against Liu

Once a defendant satisfies the first prong of the antiSLAPP analysis, “the burden shifts to the plaintiff to 

demonstrate that each challenged claim based on protected 

activity is legally sufficient and factually substantiated. The 

court, without resolving evidentiary conflicts, must determine 

whether the plaintiff’s showing, if accepted by the trier of fact, 

would be sufficient to sustain a favorable judgment. If not, the 

claim is stricken.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) 

“In making this assessment it is ‘the court’s responsibility . . . to 

accept as true the evidence favorable to the plaintiff. . . .’ 

[Citation.] The plaintiff need only establish that his or her claim 

has ‘minimal merit’ [citation] to avoid being stricken as a 

SLAPP.” (Soukup, supra, 39 Cal.4th at p. 291.) 

Colyear contends he has shown his likelihood of success on 

his quiet title claim against Liu with evidence that: (1) he has 

title; and (2) Liu made a claim adverse to that title by invoking 

the tree-trimming covenant against Colyear’s property. However, 

the trial court found that Colyear’s quiet title claim against Liu 

was mooted by the withdrawal of Liu’s application. We agree. 

Assuming Liu’s application implicated Colyear’s property when 

filed, Liu withdrew his application before any action was taken, 

leaving no pending challenges against Colyear’s property. Thus, 

at the time Colyear filed his FAC, there was no “adverse claim” 

by Liu against Colyear’s property (§§ 760.020 and 761.020 

[elements to quiet title claim]), and no effective relief the court 

could grant against Liu. (See, e.g., Giles v. Horn (2002) 100 

Cal.App.4th 206, 227 [court “cannot render opinions ‘“. . . upon 

moot questions or abstract propositions, or to declare principles 
23

or rules of law which cannot affect the matter in issue in the case 

before it”’”]; Wilson v. L. A. County Civil Service Com. (1952) 112 

Cal.App.2d 450, 453 [“‘although a case may originally present an 

existing controversy, if before decision it has, through act of the 

parties or other cause, occurring after the commencement of the 

action, lost that essential character, it becomes a moot case or 

question which will not be considered by the court’”].)5 In light of 

these findings, we need not reach the parties’ alternate 

arguments regarding ripeness, standing, or the admissibility of 

Colyear’s statements regarding ownership of the trees.

As such, we conclude that Colyear has not shown a 

probability of success on the merits of his quiet title claim.

DISPOSITION

The order granting Liu’s motion to strike pursuant to 

section 425.16 is affirmed. Liu is awarded his costs on appeal.

CERTIFIED FOR PUBLICATION

COLLINS, J.

We concur:

EPSTEIN, P. J. MANELLA, J.

 

5 Colyear argues that the trial court should have considered 

his claim because Liu’s conduct was capable of repetition, yet 

could continue to evade the courts’ review. Colyear has raised 

this argument for the first time on appeal; it is therefore 

forfeited. (See, e.g., Sanchez v. Truck Ins. Exchange (1994) 21 

Cal.App.4th 1778, 1787.) We are not persuaded by Colyear’s 

suggestion that we may review this issue as a “pure question of 

law which is presented by undisputed facts.’ [Citation.]” (Ibid.)