1

Filed 7/13/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

GOLDEN GATE LAND HOLDINGS

LLC et al.,

Plaintiffs and Respondents,

v.

DIRECT ACTION EVERYWHERE,

Defendant and Appellant.

 A163315

 (Alameda County

 Super. Ct. No. RG21091697)

Defendant Direct Action Everywhere (Direct Action) appeals from a 

trial court order denying an anti-SLAPP1 motion seeking to strike claims

brought against it by plaintiffs Golden Gate Land Holdings, LLC, and two 

related corporate entities (collectively, Golden Gate).

2 We affirm. In doing 

so, we hold that claims alleging that an advocacy organization is vicariously 

liable for a third party’s illegal conduct may be subject to a demurrer or other 

summary challenge, but they cannot be stricken under the anti-SLAPP 

statute unless the organization’s alleged liability is premised on 

constitutionally protected activity.

1 “SLAPP is an acronym for ‘strategic lawsuit against public 

participation.’ ” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 

732, fn. 1.) The anti-SLAPP motion was brought under Code of Civil 

Procedure section 425.16 (the “anti-SLAPP statute”). All statutory references 

are to the Code of Civil Procedure.

2 The two other entities are Pacific Racing Association d/b/a Golden 

Gate Fields and Pacific Racing Association II d/b/a Golden Gate Fields. 
2

I.

FACTUAL AND PROCEDURAL

BACKGROUND

Golden Gate, which operates a horse racing track in Berkeley, filed this 

suit against Direct Action, an animal rights organization, and four individual

defendants who are not parties to this appeal.

3 The complaint’s general 

allegations asserted that the four individuals, who were “affiliated with 

[Direct Action],” “climbed over [a] fence surrounding the horse racing track at 

[Golden Gate Fields (GGF)], trespassing on the GGF property,” “lit 

incendiary devices that sent purple smoke into the air,” “[lay] down directly 

on the racing track,” and “connected their arms using PVC piping to make it 

difficult, if not impossible, for them to be physically removed.” The 

“trespassers remained on the track for several hours,” preventing scheduled 

horse races from taking place. Eventually, “the trespassers were removed by 

the police” and “criminally charged.” 

The complaint included two causes of action: one for trespass, and the 

other for intentional interference with prospective economic relations, in that

the trespass “proximately caused [Golden Gate] to incur economic harm.” 

The complaint also sought to “enjoin[] Defendants, their agents, officers, 

directors, employees, and those acting in aid of or in concert with them from 

trespassing on GGF.” 

Allegations tying Direct Action to the trespass asserted that the 

defendants were affiliated with each other and liable under various theories

of relationship liability. Specifically, the complaint alleged that “each of the 

defendants . . . was . . . the agent, co-conspirator, aider and abettor, employee, 

representative, co-venturer, and/or alter ego of each and every other 

3 The complaint alleges that Direct Action “is a nonprofit, 501(c)(3) 

corporation.” 
3

defendant, and in doing the thing hereinafter mentioned was acting within 

the course and scope of his, her, or its authority as such agent, co-conspirator, 

aider and abettor, employee, co-venturer, partner, and representative, and 

with the permission and consent of such other defendants.” The complaint 

did not specify the circumstances upon which Direct Action’s alleged 

vicarious liability was based.

Direct Action responded to the complaint by filing an anti-SLAPP 

motion, claiming it was sued for engaging in constitutionally protected 

activity. It maintained it was sued “for opposing [Golden Gate’s] horse racing 

business, gathering signatures on a petition . . . to close [Golden Gate’s]

business, and allegedly organizing protests against the horse track.” It 

claimed it “had no involvement in the civil disobedience that unfolded at the 

track.” According to our record, Direct Action did not demur to the complaint 

or, with the exception of the anti-SLAPP motion, file any other dispositive 

motion.

The trial court denied the anti-SLAPP motion, ruling that Direct Action

failed to meet its initial burden to show that the complaint challenged 

protected activity. As a result, the court did not address whether Golden 

Gate had demonstrated a probability of prevailing on its claims.

II.

DISCUSSION

A. General Legal Standards

The anti-SLAPP statute allows a defendant to move to dismiss “certain 

unmeritorious claims that are brought to thwart constitutionally protected 

speech or petitioning activity.” (Robinzine v. Vicory (2006) 143 Cal.App.4th 

1416, 1420–1421.) The heart of the statute states: “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 
4

California Constitution in connection with a public issue shall be subject to a 

special motion to strike, unless the court determines that the plaintiff has 

established that there is a probability that the plaintiff will prevail on the 

claim.” (§ 425.16, subd. (b)(1).)

In deciding whether to grant a defendant’s anti-SLAPP motion, courts 

engage in a two-step, burden-shifting analysis. (Park v. Board of Trustees of 

California State University (2017) 2 Cal.5th 1057, 1061 (Park).) Under the 

first step, a court considers whether the defendant has made “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.’ ” (Simpson Strong-Tie Co., Inc. v. Gore

(2010) 49 Cal.4th 12, 21, quoting § 425.16, subd. (b)(1).) To make such a 

showing, the defendant need not demonstrate that its actions were protected 

as a matter of law, but need only establish a prima facie case that the actions 

fell into one of the categories listed in section 425.16, subdivision (e). 

(Flatley v. Mauro (2006) 39 Cal.4th 299, 314.) If the defendant cannot make 

such a showing, the anti-SLAPP motion must be denied, and the plaintiff is 

entitled to continue to litigate the cause of action. (See ibid.; City of Cotati v. 

Cashman (2002) 29 Cal.4th 69, 80–81.)

But if the defendant can make such a showing, the analysis proceeds to 

the second step where the burden shifts to the plaintiff to demonstrate “that 

there is a probability that [it] will prevail on the [cause of action].” (§ 425.16, 

subd. (b)(1).) To meet this burden, “ ‘the plaintiff “must demonstrate that the 

[cause of action] is both legally sufficient and supported by a sufficient prima 

facie showing of facts to sustain a favorable judgment if the evidence 

submitted by the plaintiff is credited.” ’ ” (Navellier v. Sletten (2002) 

29 Cal.4th 82, 88–89.) If the plaintiff meets this burden, the anti-SLAPP 
5

motion must be denied, and the plaintiff is entitled to continue to litigate the 

cause of action. (See Flatley v. Mauro, supra, 39 Cal.4th at p. 332 & fn. 16.)

Thus, an anti-SLAPP motion may be granted only if the defendant first 

shows that its conduct was constitutionally protected and the plaintiff then 

fails to “demonstrate its claims have at least ‘minimal merit.’ ” (Park, supra, 

2 Cal.5th at p. 1061.) Stated another way, a trial court may grant an antiSLAPP motion—i.e., strike a claim—only if it finds, after applying both steps 

of the analysis, that the claim is based on protected activity and lacks

minimal merit. But a trial court must deny an anti-SLAPP motion—i.e., 

allow the claim to proceed—if it finds, after applying either step of the 

analysis, that the claim is not based on protected activity or has at least 

minimal merit. We review de novo the denial of an anti-SLAPP motion. (Id.

at p. 1067.)

B. The Trial Court Properly Denied the Anti-SLAPP Motion Because 

Direct Action Failed To Make a Prima Facie Showing that the 

Claims Against It Arose from Protected Activity.

Direct Action contends that “Golden Gate sued [it] over its speech in 

public forums on an issue of public interest.” We cannot agree. The only fair 

reading of the complaint is that the wrong on which the claims against Direct 

Action are based was the organization’s alleged involvement in the illegal 

trespass, not its speech or petitioning activity. We therefore agree with the 

trial court that Direct Action failed to satisfy its burden under the first step 

of the anti-SLAPP analysis.

4

 

4 We accepted and have considered two briefs submitted by amici

curiae. The first was submitted on behalf of the First Amendment Coalition, 

the American Civil Liberties Union of Northern California, the California 

News Publishers Association, and Californians Aware. The second was 

submitted on behalf of Amazon Watch, the Civil Liberties Defense Center, 
6

The anti-SLAPP statute’s “phrase ‘cause 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 anti-SLAPP context, the critical point is 

whether the plaintiff’s cause of action itself was based on [protected activity],” 

and “the mere fact an action was filed after protected activity took place does 

not mean it arose from that activity.” (City of Cotati v. Cashman, supra,

29 Cal.4th at pp. 76–78.)

In Park, supra, 2 Cal.5th 1057, our state Supreme Court discussed the 

“requisite nexus between the claims an anti-SLAPP motion challenges and 

protected activity.” (Id. at p. 1062, italics and some capitalization omitted.) 

“[A] claim is not subject to a motion to strike simply because it contests an 

action or decision that was arrived at following speech or petitioning activity, 

or that was thereafter communicated by means of speech or petitioning 

activity. Rather, a claim may be struck only if the speech or petitioning 

activity itself is the wrong complained of, and not just evidence of liability or 

a step leading to some different act for which liability is asserted.” (Id. at 

p. 1060.) Thus, in evaluating an anti-SLAPP motion, “courts should consider 

the elements of the challenged claim and what actions by [the] defendant 

supply those elements and consequently form the basis for liability.” (Id. at 

p. 1063; see Wong v. Wong (2019) 43 Cal.App.5th 358, 366.)

Accordingly, we turn to consider the elements of the claims alleged 

here. “The elements of trespass are: (1) the plaintiff’s ownership or control of 

the property; (2) the defendant’s intentional, reckless, or negligent entry onto 

the property; (3) lack of permission for the entry or acts in excess of 

Climate Defense Project, the Mosquito Fleet, Portland Rising Tide, and the 

Sierra Club. 
7

permission; (4) harm; and (5) the defendant’s conduct was a substantial 

factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants,

Inc. (2017) 17 Cal.App.5th 245, 262.) The elements of intentional 

interference with prospective economic advantage are: “(1) the existence, 

between the plaintiff and some third party, of an economic relationship that 

contains the probability of future economic benefit to the plaintiff; (2) the 

defendant’s knowledge of the relationship; (3) intentionally wrongful acts 

designed to disrupt the relationship; (4) actual disruption of the relationship; 

and (5) economic harm proximately caused by the defendant’s action.” (Roy 

Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 

512.) In addition, as the trial court indicated, an advocacy organization is 

liable for acts committed by protesters only if the organization authorized, 

directed, or ratified specific tortious activity, incited lawless action, or gave 

specific instructions to carry out violent acts or threats.5(See NAACP v.

Claiborne Hardware Co. (1982) 458 U.S. 886, 931; Lam v. Ngo (2001) 

91 Cal.App.4th 832, 837.)

The cause of action for trespass was necessarily based on the individual 

defendants’ trespass, and the cause of action for intentional interference was 

premised on the allegation that the intentional trespass “proximately caused 

[Golden Gate] to incur economic harm.” The third claim was for injunctive 

relief, and as such it is not a cause of action but instead a request for a 

remedy not subject to the anti-SLAPP statute. (See Wong v. Jing (2010) 

189 Cal.App.4th 1354, 1360, fn. 2.) In any event, the request for injunctive 

relief plainly did not address protected activities, as it sought only to enjoin 

further “unlawful trespass.” In short, the wrong forming the basis of the 

5 A representative of Direct Action submitted a declaration in the trial 

court attesting the organization “did not organize [the] protest or promote it.” 
8

claims against Direct Action was its alleged involvement in the trespass, not 

in speech or petitioning. 

We recognize that the complaint’s general allegations asserted that 

Direct Action is an animal-rights activist group with a mission to create “ ‘a 

world where all animals are respected and viewed as individuals with 

autonomy over their own bodies.’ ” The complaint also asserted that Direct 

Action maintains a petition on its website called “shut down Golden Gate 

Fields,” which the organization allegedly encourages people to sign. And the 

complaint asserted that Direct Action has a Facebook page on which it 

streamed live video footage of the trespass on Golden Gate’s horse racing 

track. But, as the trial court found, Golden Gate’s claims did not seek 

recourse from Direct Action for these activities or circumstances. The wrong 

complained of was plainly the alleged illegal trespass.

6

“ ‘ “[I]f 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.” ’ ” (Wong v. Wong, supra,

43 Cal.App.5th at p. 365.) True enough, mixed claims, which are based on 

allegations of both protected and unprotected activity, are subject to the first 

step of the anti-SLAPP analysis because a plaintiff cannot shield “particular 

allegations of protected activity, themselves sufficient to give rise to a claim 

for relief, from a motion to strike by intermingling them with unprotected 

acts.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010; see 

6 Other allegations in the complaint also support this conclusion. The 

complaint identifies certain non-defendants who protested at GGF without 

trespassing. According to the complaint, these people, also “affiliated with 

Direct Action[,] stood on a sidewalk just outside GGF, lit purple incendiary 

devices, and held up a large sign stating ‘Shut Down Golden Gate Fields.’ ” 

No claims were asserted against these protesters.
9

Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA,

Inc. (2005) 129 Cal.App.4th 1228, 1245.) But the claims here were not mixed,

as they all arose out of, and sought relief solely based on, the alleged 

trespass. Put another way, the complaint’s allegations of Direct Action’s 

speech-related activities were essentially extraneous to the claims. (See 

Baral v. Schnitt (2016) 1 Cal.5th 376, 394 [allegations of protected activity 

that merely provide context, without supporting a claim for recovery, cannot 

be stricken under the anti-SLAPP statute].)

Direct Action argues that the focus should not be on the trespass,

because the complaint’s allegations of the organization’s liability under 

various relationship theories were conclusory and cannot overcome the notion 

that the complaint’s claims arose from protected activity. We agree that the 

allegations of Direct Action’s liability were conclusory and the claims against 

it may be vulnerable to a demurrer or other summary challenge. The 

complaint alleged that the defendants acted with each other’s “permission 

and consent,” but it did not allege any specific factual basis to support the 

allegations that each defendant was the “agent, co-conspirator, aider and 

abettor, employee, representative, co-venturer, partner, and/or alter ego” of 

the others. Still, regardless of the potential vulnerability of the claims 

against Direct Action, our review here is limited to the trial court’s antiSLAPP ruling, and we cannot conclude that the trial court erred in finding 

that Direct Action failed to satisfy its burden under the first step of the antiSLAPP analysis to show that the claims against it arose from protected 

activity.

Spencer v. Mowat (2020) 46 Cal.App.5th 1024 (Spencer) is instructive. 

The plaintiff in that case, like Golden Gate here, sued individual direct 

tortfeasors as well as an organization and alleged vicarious liability under a 
10

conspiracy theory. (Id. at pp. 1027–1028.) In upholding the denial of the 

anti-SLAPP motion of two of the individual defendants, the Court of Appeal 

applied Park’s elements-based analysis and explained that the alleged

conspiracy was “a doctrine of liability and not a cause of action itself.”

(Spencer, at p. 1036.) Spencer emphasized that the anti-SLAPP analysis 

focuses on the acts that constitute the underlying torts, not the acts that 

establish vicarious liability for those torts: “[I]t is the tort itself that controls, 

not individual acts that demonstrate the existence of a conspiracy.” (Id. at 

p. 1037.) According to Spencer, this approach “is compelled by Park . . . . 

When liability is asserted for the target act of a conspiracy, the preliminary 

speech or petitioning activity [evincing participation in the conspiracy] is 

simply evidence of the defendant’s liability, not ‘the wrong complained of.’ ”

(Ibid.)

Simmons v. Bauer Media Group USA, LLC (2020) 50 Cal.App.5th 1037, 

is similarly instructive. In that case, a newspaper was alleged to be

vicariously liable under an agency theory for its alleged agent’s wrongful act 

of attaching a tracking device to a car. (Id. at pp. 1045–1046.) Upholding the 

denial of the newspaper’s anti-SLAPP motion, the Court of Appeal explained 

that the wrong complained of was the alleged wrongful attachment of the 

tracking device, not the newspaper’s claimed protected activity of 

“ ‘newsgathering,’ by ‘engaging an independent contractor to take news 

photographs’ of a celebrity.” (Id. at pp. 1045, 1047.) Other cases evaluating 

claims seeking to hold a defendant liable for another’s tortious conduct under 

the first step of the anti-SLAPP analysis have similarly focused on the 

underlying tort, not the conduct that allegedly established the vicarious 

liability. (See, e.g., Richmond Compassionate Care Collective v. 7 Stars

Holistic Foundation, Inc. (2019) 32 Cal.App.5th 458, 470; Novartis Vaccines
11

& Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 

143 Cal.App.4th 1284, 1296.)

Pointing mainly to Contreras v. Dowling (2016) 5 Cal.App.5th 394, 

Direct Action insists there is a “now-shallow split of authority” in the Courts 

of Appeal on the application of the anti-SLAPP statute when a defendant is 

alleged to be vicariously liable for others’ wrongful actions. We are not 

convinced. In Contreras, a tenant sued a landlord’s attorney for conspiring 

with the landlord to enter rented premises illegally. (Id. at p. 402.) In his

anti-SLAPP motion, the landlord’s attorney argued that the only activity of 

his the complaint challenged was protected under the anti-SLAPP statute 

because it involved providing legal advice and representation. Division Five 

of this court agreed with the attorney, concluding that the anti-SLAPP 

motion should have been granted. (Id. at pp. 399, 409–410.)

Significantly, however, the Contreras complaint’s allegations and the 

parties’ contentions made it clear the attorney was sued for “communicative 

acts” taken while representing a client. (Contreras v. Dowling, supra,

5 Cal.App.5th at p. 409.) Such acts were “per se protected as petitioning 

activity by the anti-SLAPP statute.” (Ibid.; see § 425.16, subd. (e)(1) & (2).) 

As Spencer explained, “Contreras is distinguishable, both because it involved 

the factual scenario of an attorney allegedly acting in concert with his clients, 

and because the appellate court concluded the plaintiff’s allegations of 

conspiracy were conclusory and alleged nothing beyond the provision of 

routine legal services. [Citation.] Ignoring the defective conspiracy 

allegations, the court analyzed separately the respective acts of the landlord 

and attorney. It found the only acts alleged against counsel were in advising 

his client, protected activity.” (Spencer, supra, 46 Cal.App.5th at p. 1039.) 

Unlike the allegations and parties’ contentions in Contreras, the allegations 
12

and contentions here provide no basis to conclude that Direct Action’s actions 

regarding the trespass were similarly per se protected activity.

Direct Action fears that “if the rule from . . . Spencer is right, anyone 

involved in any protest or social movement can be stripped of the anti-SLAPP 

statute’s protection if the plaintiff alleges any one person associated with the 

protest or movement committed any illegal action.” The concern is 

exaggerated and inapt. Parties involved in protest and social movements are 

entitled to the protections of the anti-SLAPP law when they are sued for 

engaging in protected activities. If they are sued for another’s non-protected 

illegal conduct based on vicarious-liability allegations that are vague, 

conclusory, or legally insufficient, they can file a demurrer or bring another 

summary challenge. In such a challenge, the adequacy of the allegations can 

be reviewed in light of the applicable law, and if appropriate, amendments 

can be permitted to address pleading deficiencies. (Cf. Simmons v. Allstate

Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [plaintiffs are generally precluded 

from amending a claim after it is stricken under the anti-SLAPP statute].) 

Although we need not decide whether such a challenge would be meritorious

in this case, we can imagine a number of grounds upon which Direct Action 

could argue that the allegations of its vicarious liability fail to state a claim 

or must be summarily rejected for legal or factual reasons. Still, the antiSLAPP law does not immunize advocacy organizations, including Direct 

Action, from claims based on vicarious liability for another’s non-protected 

conduct simply because of the nature of their organizational missions. Such 

claims might sometimes be unsupportable, but they might sometimes be 

legitimate.

Direct Action contends that the other procedural mechanisms to 

challenge claims brought against an advocacy organization are inadequate 
13

because “[t]he anti-SLAPP statute is designed to provide additional

protections . . . , including freezing the pleadings, protecting against 

discovery, providing an early resolution, and awarding mandatory attorney 

fees.” Amici similarly argue that other mechanisms are less “stringent,” are 

not as “foregrounded at the outset of the litigation,” and “contain no feeshifting provisions,” thereby “providing less deterrence against SLAPP claims 

and less help for defendants fighting them.” But the anti-SLAPP statute was 

designed to streamline the resolution of claims based on protected activity, 

not to streamline the resolution of any claims that might lack merit.

The trial court properly held that Direct Action failed to make a prima 

facie showing that the claims against it were premised on protected activity. 

Because Direct Action failed to sustain its burden at the first step of the antiSLAPP analysis, we need not address the second step, notwithstanding 

Direct Action’s insistence to the contrary.

III.

DISPOSITION

The trial court’s order denying Direct Action’s anti-SLAPP motion is 

affirmed. Respondents are awarded their costs on appeal.
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_________________________

Humes, P.J.

We concur:

_________________________

Margulies, J.

_________________________

Wiss, J.*

*Judge of the Superior Court of the City and County of San Francisco, 

assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.

Golden Gate Holdings, LLC v. Direct Action Everywhere A163315
15

Trial Court:

Superior Court of the County of Alameda

Trial Judge:

Hon. James R. Reilly

Counsel for Defendant and Appellant:

Matthew Strugar, Law Office of Matthew Strugar

Counsel for amici curiae on behalf of Appellant:

John David Loy, David E. Snyder, Monica N. Price, First Amendment 

Coalition, for amici curiae First Amendment Coalition, American Civil 

Liberties Union of Northern California, California News Publishers 

Association, Californians Aware

Kelsey C. Skaggs, for amici curiae Amazon Watch, the Civil Liberties 

Defense Center, Climate Defense Project, the Mosquito Fleet, Portland Rising 

Tide, and the Sierra Club

Counsel for Plaintiffs and Respondents:

Robert R. Moore, Michael J. Betz, Alexander J. Doherty, Allen Matkins 

Leck Gamble Mallory & Natsis LLP

Golden Gate Holdings, LLC v. Direct Action Everywhere A163315