Filed 2/26/24 Mesquite Country Club Condominium Homeowners etc. v. Save Oswit Canyon CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MESQUITE COUNTRY CLUB 

CONDOMINIUM HOMEOWNERS 

ASSOCIATION,

Plaintiff and Respondent,

v.

SAVE OSWIT CANYON, INC.,

Defendant and Appellant.

 D082762

 (Super. Ct. No. CVPS2203251)

APPEAL from an order of the Superior Court of Riverside County, 

Carol A. Greene, Judge. Affirmed.

Burke, Williams & Sorensen, Mark J. Mulkerin, Richard J. Reynolds, 

and John R. Horstmann for Defendant and Appellant.

Capobianco Law Offices, Nino Capobianco, Derek Wallen; Slovak Baron 

Empey Murphy & Pinkney, Shaun Murphy; Murphy, Pearson, Bradley & 

Feeney, Jeff C. Hsu and Marlin Y. Gillespie for Plaintiff and Respondent.
2

INTRODUCTION

In August 2022, Respondent Mesquite Country Club Condominium 

Homeowners Association (the HOA) sued Appellant Save Oswit Canyon, Inc., 

which is doing business as the Oswit Land Trust, a non-profit corporation 

(Oswit). The complaint alleged causes of action for: (1) breach of the 

Declaration of Covenants, Conditions and Restrictions for Mesquite Country 

Club Condominiums recorded on June 14, 1984 (the CC&Rs) and the 1984 

Lease Agreement between the HOA and the Mesquite Golf & Country Club

(as amended by a 1988 settlement agreement and a 2004 judgment) (the 

lease); (2) nuisance; (3) nuisance per se; and (4) declaratory relief.1

Oswit filed a special motion to strike under Code of Civil Procedure2

section 425.16.3 The trial court denied the motion, and Oswit appealed.

Oswit contends its protected statements and conduct are the gravamen 

of the HOA’s causes of action and that the HOA cannot meet its burden of 

showing a likelihood of success on the merits. We disagree and affirm the 

order.

1 The complaint also contained a cause of action for trespass, which the 

HOA subsequently dismissed, and two additional causes of action against 

another defendant, Ramin Saghian. 

2 Statutory references are to the Code of Civil Procedure unless 

otherwise indicated.

3 Section 425.16 is commonly referred to as the anti-SLAPP statute 

because a special motion thereunder seeks to strike a “ ‘[s]trategic lawsuit 

against public participation,’ ” or SLAPP. (Wilson v. Cable News 

Network, Inc. (2019) 7 Cal.5th 871, 882, fn. 2 (Wilson).)
3

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint

In its complaint filed on August 12, 2022, the HOA explains that it was 

designed as an integrated residential golf course community and that about a 

third of its 600 condominium units are situated adjacent to an 18-hole golf 

course. Palms Partners Capital, LLC (Palms Partners), owned by Saghian,

acquired the Mesquite Golf & Country Club (the Club) and the golf course in 

2014. Thereafter, Palms Partners allegedly failed to maintain the golf course 

and the Club despite several notices from the HOA regarding deficiencies and 

dangerous conditions, which the HOA contends are lease violations and 

public nuisances. As a result of Palms Partners’ lack of action, the HOA 

describes both the Club and golf course as “not useable.” 

Oswit purchased the golf course from Palms Partners on July 26, 2022. 

Palms Partners retained ownership of the Club. According to the HOA’s 

complaint, Oswit confirmed in written materials disseminated to 

homeowners that it would convert the golf course to a public nature preserve 

and botanical garden. The HOA further submits that an attorney for a 

principal of Oswit and one of its significant donors, The Prescott Foundation, 

stated that the new preserve, to be known as Prescott Preserve, will never 

operate as a golf course. The complaint alleges that “[s]ince its purchase of 

the Golf Course, it appears that Oswit has completely abandoned the Golf 

Course and has stopped all maintenance, landscaping and irrigation,

contributing to its further deterioration.” 

B. The Anti-SLAPP Motion

Oswit argued in its anti-SLAPP motion that the HOA’s complaint was 

intended to stifle Oswit’s protected activity in order to promote a competing 

residential development proposal for the property. It maintained that the 
4

HOA’s demand that the property be used as a golf course was “absurd.” In 

support, it pointed to a declaration from Saghian in which he stated that the 

golf course was unprofitable during the entire term of Palms Partners’ 

ownership and that he shut down golf course operations on July 15, 2022

(before Oswit purchased the property). 

According to Oswit, the HOA based its claim for anticipatory breach of 

the CC&Rs and the lease on Oswit’s public statements regarding its intention 

to dedicate to public use the former golf course property. It pointed to 

allegations in the complaint that Oswit disseminated written materials to 

HOA members and stated its intentions to violate the CC&Rs and lease. 

Further, Oswit filed the Declaration of Jane Garrison, its founder and 

president, in support of its motion and, based thereon, explained that it had

“for years made loud and clear its intention to protect land in the Coachella 

Valley, and specifically communicated to [the HOA] Board its vision 

regarding the failed Mesquite Golf Course.”4 Oswit argued the HOA board 

repeatedly stifled Garrison’s efforts to speak with homeowners regarding 

Prescott Preserve. It did not specifically contend that the nuisance or 

declaratory judgment causes of action arose from protected activity. 

Turning to the second step of the analysis, Oswit maintained the HOA 

would not succeed on the merits of any of its claims. On the first cause of 

action, Oswit pointed out that neither the CC&Rs nor the lease requires the 

property to be operated as a golf course. As to the nuisance claims, Oswit 

argued the HOA lacked standing because the homeowners were the real 

parties in interest. It otherwise submitted the HOA could not establish 

causation because Palms Partners was responsible for the nuisance 

conditions and, if anything, Oswit had begun remediation efforts since 

4 The admissibility of this evidence will be addressed post.
5

purchasing the property. Because the seventh cause of action sought a 

declaration consistent with the other claims, Oswit argued it too failed. 

C. The Anti-SLAPP Order

Following a hearing, the trial court issued a minute order denying the 

anti-SLAPP motion. The court concluded that the anti-SLAPP statute did 

not apply because Oswit was “not being sued for talking about converting the 

golf course into a nature preserve, but for taking steps to actually make that 

conversion occur, and is therefore being sued for conduct rather than speech.” 

It cited the holding from Park v. Board of Trustees of California State 

University (2017) 2 Cal.5th 1057, 1067 (Park) that, “[a]s many Courts of 

Appeal have correctly understood, to read the ‘arising from’ requirement 

differently, as applying to speech leading to an action or evidencing an illicit 

motive, would, for a range of publicly beneficial claims, have significant 

impacts the Legislature likely never intended.”

DISCUSSION

A. Evidentiary Objections

Oswit filed numerous declarations in conjunction with its anti-SLAPP

motion, including the ones referenced ante. The HOA filed written objections 

to all of them. The trial court overruled the objections, indicating they all 

went to “evidence not considered.” The HOA did not renew its objections on 

appeal. 

On the first step of the anti-SLAPP analysis, we are not required to 

accept the complaint’s allegations as true if the defendant submits contrary 

evidence. (Wilson, supra, 7 Cal.5th at p. 887.) Rather, we may look beyond 

the pleadings to consider evidentiary submissions by the parties. (Ibid.) 

Accordingly, we may consider the declarations filed by Oswit—particularly 

given that the HOA did not renew its objections on appeal. (C.f. Gruber v. 
6

Gruber (2020) 48 Cal.App.5th 529, 541, fn. 5 [addressing objections to 

evidence presented in opposition to an anti-SLAPP motion where the trial 

court overruled the objections, and the objecting parties renewed the 

objections on appeal].) That being said, as we explain post, the additional 

information provided in the declarations does not aid Oswit.5

B. Legal Principles

“[T]he anti-SLAPP statute is designed to protect defendants from 

meritless lawsuits that might chill the exercise of their rights to speak and 

petition on matters of public concern. [Citations.] To that end, the statute 

authorizes a special motion to strike a claim ‘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.’ ” (Wilson, supra, 7 Cal.5th at pp. 883–884.)

“Litigation of an anti-SLAPP motion involves a two-step process. First, 

‘the moving defendant bears the burden of establishing that the challenged 

allegations or claims “aris[e] from” protected activity in which the defendant 

has engaged.’ [Citation.] Second, for each claim that does arise from 

protected activity, the plaintiff must show the claim has ‘at least “minimal 

merit.” ’ [Citation.] If the plaintiff cannot make this showing, the court will 

strike the claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 

1009 (Bonni).) 

We review an order granting or denying an anti-SLAPP motion de 

novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) We therefore engage in 

the same two-step process that the trial court undertakes in assessing 

5 On appeal, Oswit objects to evidence the HOA filed below in support of 

its opposition to the anti-SLAPP motion. All of this evidence goes to whether 

the HOA met its burden at the second prong of the analysis. Because we do 

not reach the second prong, we need not address these objections. 
7

an anti-SLAPP motion. (See Mendoza v. ADP Screening & Selection Services, 

Inc. (2010) 182 Cal.App.4th 1644, 1652.) If the defendant fails to meet its 

burden at the first step, we need not address the second step. 

C. Analysis of Prong One Under the Anti-SLAPP Statute 

Oswit contends the trial court erred in concluding its protected conduct 

and speech were not the basis for the HOA’s breach of contract, nuisance, 

nuisance per se, and declaratory relief claims.

A defendant satisfies the first prong of the anti-SLAPP analysis by 

demonstrating that the allegedly injurious conduct falls within one of four 

categories of protected activity described in section 425.16, subdivision (e), 

and that the claim asserted by the plaintiff arises from that conduct. (Rand 

Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620.) Section 425.16, 

subdivision (e) provides: “As used in this section, ‘act in furtherance of a 

person’s right of petition or free speech under the United States or California 

Constitution in connection with a public issue’ includes: (1) any written or

oral statement or writing made before a legislative, executive, or judicial 

proceeding, or any other official proceeding authorized by law, (2) any written 

or oral statement or writing made in 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.” 

(§ 425.16, subd. (e).)

“A claim arises from protected activity when that activity underlies or 

forms the basis for the claim. [Citations.] Critically, ‘the defendant’s act 
8

underlying the plaintiff’s cause of action must itself have been an act in 

furtherance of the right of petition or free speech.’ [Citations.] ‘[T]he mere 

fact that an action was filed after protected activity took place does not mean 

the action arose from that activity for the purposes of the anti-SLAPP 

statute.’ ” (Park, supra, 2 Cal.5th at pp. 1062–1063.) In making this 

determination, the court looks at what actions by the defendant supply the 

elements of the challenged claim. (Id. at p. 1063.) 

1. Allegations in the Complaint

In paragraphs 29 through 32 of its complaint, the HOA makes several 

allegations against all three defendants in the underlying action, including, 

in pertinent part, that they: (1) failed to maintain the golf course in violation 

of the lease, thereby creating a “severe safety hazard and health and 

environmental nuisance”; (2) failed to maintain the bodies of water on the 

golf course, causing them to become stagnant breeding grounds for 

mosquitos, moss, algae, and bacteria toxic to humans and wildlife; (3) failed

to maintain the facilities; and (4) refused to comply despite numerous written 

demands.6

As to Oswit in particular, the HOA alleges in paragraph 36 that, “[i]n 

written materials disseminated to [HOA] members, among others, Oswit has 

6 These last two allegations appear to apply only to Palms Partners and 

Saghian, as the “facilities” refer to the Club’s meeting room, the racquetball 

courts, and the tennis courts, to which Palms Partners retained ownership 

after it sold the golf course property to Oswit. Paragraph 32 alleges that 

“[d]espite numerous written demands to Defendants they continue to refuse 

to comply” and paragraph 33 asserts that, “[o]n or around July 18, 2022, the 

[HOA] again notified Palms Partners of various maintenance issues, and 

dangerous and unhealthy conditions and demanded that those conditions and 

public nuisances be remedied” (italics added). Although paragraph 32 

references all three defendants, the HOA’s use of the word “again” in the next 

paragraph suggests that all of the other demands occurred prior to 

July 18, 2022, and thus, before Oswit took ownership. 
9

confirmed that it will not continue to maintain or operate the Golf Course; 

instead, it intends to convert the Golf Course to a public nature preserve and 

botanical garden, all in violation of the Lease.” It characterizes Oswit’s 

desire to “redevelop” the golf course as a violation of the lease that threatens 

irreparable harm to the HOA. In paragraph 37, the complaint references 

admissions on August 1, 2022, by an attorney for The Prescott Foundation, 

that “ ‘(i) “Prescott Preserve [the new name proposed for the Mesquite Golf 

Course] will never be operated as a golf course”, (ii) the conversion of the Golf 

Course violates the existing CC&Rs and Lease rights of the [HOA] and thus 

“[a]ll HOA communities will need to restate their respective governing

documents” . . . “to reflect the new Recreational Use (which may never 

change)”, and (iii) The [] HOA Communities surrounding the Prescott

Preserve will be asked to share in these costs and expenses (short and long 

term) [related to the creation of this preserve.]’ ” The HOA further asserts 

that because “Oswit is openly soliciting outside donations to fund this 

proposed project,” it may not have sufficient funds to complete the project. 

This funding uncertainty, according to the HOA’s complaint, “will affect the 

value and salability of homes in the Mesquite community.” Relevant to the 

claims at issue, the HOA alleges that “[s]ince its purchase of the Golf Course, 

it appears that Oswit has completely abandoned the Golf Course and has 

stopped all maintenance, landscaping and irrigation, contributing to its 

further deterioration.” The HOA claims these acts and omissions, together 

with those of the other defendants, threaten irreparable harm to the health 

and safety of the HOA residents and threaten to do substantial and 

permanent damage to the salability and property values of homes within the 

HOA “by turning the Property into a blighted eyesore and health and 

environmental nightmare and by discontinuing golf course operations.” 
10

In the first cause of action, the HOA alleges that “Oswit and Palms 

Partners have breached and/or anticipatorily breached the Lease and CC&Rs 

by failing to maintain and operate the Golf Course and the Facilities, 

including in accordance with the standards set forth in the Lease, and/or 

announcing an intention not to operate the Golf Course and to convert it to 

another use.” 

The second cause of action, which is for nuisance, alleges, among other 

things, that through the acts and omissions described ante, all three 

defendants “have created conditions and permitted conditions to persist” that 

are harmful to the HOA residents’ health and safety; indecent and offensive 

to the senses; likely to diminish property values and the ability to sell homes; 

and an obstruction to the comfortable use and enjoyment of the property. It 

describes the failure to maintain the golf course, stagnation of bodies of 

water, and proliferation of bacteria, vectors, and so forth as continuing 

nuisances that must be abated. 

In alleging nuisance per se in the third cause of action, the HOA cites 

violations of California Health and Safety Code sections 12510 (fire nuisance) 

and 2002 (water vector related nuisance) as demonstrating that Oswit and 

the others have created ongoing nuisances per se.7

Finally, in its seventh cause of action, the HOA asserts that “[a]n 

actual controversy has arisen and now exists between the [HOA] and 

Defendants relating to their rights and obligations under the Lease, the

CC&Rs, the Settlement Agreement and the Judgment, in particular as 

relates to Defendants’ obligations to maintain and continue to operate the 

Golf Course and to maintain the Property, including the Facilities, in good 

7 The HOA also cites a code relevant to mold in structures, which again 

appears relevant only to the Club owned by Palms Partners and Saghian. 
11

and useable condition” and seeks a declaration of the parties’ rights, duties, 

and obligations under the same. 

2. Breach of the CC&Rs and Lease

We begin with whether Oswit has met its burden on the claim for

breach of the CC&Rs and lease to “show ‘the challenged cause of action arises 

from protected activity.’ ” (Jackson v. Mayweather (2017) 10 Cal.App.5th 

1240, 1250.) “To prevail on a cause of action for breach of contract, the 

plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the 

contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the 

resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 

Cal.App.4th 1182, 1186.) A party to a contract may breach by 

nonperformance, repudiation, or a combination of the two. (HewlettPackard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 549–550.) Actual 

breach by nonperformance “refers to an unjustified or unexcused failure to 

perform a material contractual obligation when performance is due.” (Id. at 

p. 550.) Anticipatory breach of contract, on the other hand, “ ‘occurs when the 

contract is repudiated by the promisor before the promisor’s performance 

under the contract is due.’ ” (Ibid.)

Oswit argues the HOA’s cause of action for anticipatory breach of the 

CC&Rs and lease is based upon Oswit’s public statements regarding its 

intention to dedicate the golf course property to public use as Prescott 

Preserve. Oswit further contends the alleged breach is based on Garrison’s 

speech and related public statements, which it claims were matters of 

widespread public interest in Palm Springs. (See § 425.16, subd. (e)(3) & (4).)

Additionally, because her statements occurred at HOA board meetings, Oswit 

insists they occurred in public forums under the anti-SLAPP statute. (See 

id., subd. (e)(3).)
12

As an initial matter, nowhere in the complaint does the HOA reference 

Garrison’s statements at HOA meetings. “Because the issues to be 

determined in an anti-SLAPP motion are framed by the pleadings, we will 

not ‘insert into a pleading claims for relief based on allegations of activities 

that plaintiffs simply have not identified . . . . It is not our role to engage in 

what would amount to a redrafting of [a] complaint in order to read that 

document as alleging conduct that supports a claim that has not in fact been 

specifically alleged, and then assess whether the pleading that we have 

essentially drafted could survive the anti-SLAPP motion directed at it.’ ” 

(Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 883.) 

Thus, we will not read in allegations regarding statements made at HOA 

meetings in order to bring the complaint within the gamut of 

subdivision (e)(3) of section 425.16. Most of the HOA’s complaint focuses on 

Oswit’s actions; namely, its alleged failure to maintain and irrigate the golf 

course and keep the water features clear of algae and vectors such as 

mosquitoes. Subdivision (e)(3) of section 425.16 applies only to “any written 

or oral statement” and these are not statements. (Talega Maintenance 

Corp. v. Standard Pacific Corp. (2014) 225 Cal.App.4th 722, 728 (Talega).) 

To the extent the HOA addresses speech in paragraphs 36 and 37 of the 

complaint, it argues these paragraphs provide mere context for, and evidence 

in support of its claims. At most, these paragraphs could be construed as 

reflecting either Oswit’s decision to repudiate the CC&Rs and lease or its 
13

confirmation that it was, in fact, breaching the same.8 But the complaint 

also makes allegations of actions reflecting breach. Furthermore, the focus of 

a cause of action for breach of any agreement is the failure to perform as 

promised under the contract. The damages are not based on the breaching 

party’s statements of repudiation or breach but on the losses that result from 

that party’s failure to provide the benefit of the bargain. Thus, the fact that 

Oswit made statements about its intended use of the property as a preserve 

does not mean these statements must themselves form the basis of liability. 

As the high court explained in Park, “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.” (Park, supra, 2 Cal.5th at p. 1060.) As the HOA points 

out, to hold otherwise would allow a defendant to immunize itself from 

liability by talking publicly about its wrongful conduct, then filing an antiSLAPP motion against anyone who sued. In this case, the language of the 

complaint indicates the HOA did not sue to stop Oswit from talking about 

converting the golf course into a preserve. By seeking a judgment that Oswit 

was acting in violation of the lease and CC&Rs, as well as declaratory and 

injunctive relief, the HOA sought to stop Oswit from actually turning the golf 

course into Prescott Preserve.

8 Paragraph 36 references written materials disseminated to HOA 

members but does not indicate when this occurred. If it happened before the 

time when Oswit’s performance was due under the CC&Rs and lease, then it

may demonstrate a repudiation of the agreements. If after, it may have 

confirmed that Oswit had breached the agreements and planned to remain in 

breach. 
14

Oswit contends the timing of the HOA’s lawsuit is what is most fatal in 

its attempt to avoid anti-SLAPP protection. It highlights that Oswit 

purchased the property on July 22, 2022, the HOA made the decision to sue 

on July 28, 2022, and the HOA filed suit on August 12, 2022. Because Oswit 

submits that it did not and could not destroy or demolish the golf course in 

the 21 days between the purchase and filing of the lawsuit, much less the six 

days between the purchase and the decision to sue, it asserts the HOA’s claim 

for anticipatory breach of the CC&Rs and lease was triggered by Oswit’s

public statements. 

In our view, what this timing reflects is that, although Garrison 

acknowledges having been “quite vocal with the [HOA] Board for years as to 

[Oswit’s] plans and proposals to create open space natural conservancy which 

included the Mesquite Golf Course property” (italics added), the HOA did not 

sue until Oswit actually purchased the property. In other words, the HOA

tolerated Garrison’s and Oswit’s public statements of their intentions for 

years but did not actually sue until Oswit acted on its intent and 

demonstrated that it was going through with its promises to turn the 

property into a preserve. Once again, “the mere fact that an action was filed 

after protected activity took place does not mean the action arose from that 

activity for the purposes of the anti-SLAPP statute.” (Navellier v. Sletten

(2002) 29 Cal.4th 82, 89.) And, although Oswit may not have had time to 

take many steps towards converting the property after it took ownership, it

immediately made clear its intent to breach the contract and to not pursue 

golf course restoration. The complaint alleges that destroying the golf course

would deprive the homeowners of the intended benefits of the lease and 

CC&Rs and interfere with their quiet enjoyment of the property. Thus, the 
15

cause of action was not based on Oswit’s statements themselves.9 Rather, 

this speech was evidence of Oswit’s liability for breach of contract and was a

first step in Oswit’s underlying course of conduct of transforming the golf 

course into a preserve. (See Park, supra, 2 Cal.5th at p. 1060.) 

To the extent Oswit otherwise argues the HOA could not legitimately 

claim the property could be restored to a usable golf course or that Palms 

Partners was responsible for its present condition, these are factual issues

that go to the HOA’s likelihood of success on the merits on prong two. They 

are not relevant to the first step of the anti-SLAPP analysis. (Talega, supra,

225 Cal.App.4th at p. 728 [at the first stage of the analysis, we review the 

parties’ pleadings, declarations, and other supporting documents “only ‘to 

determine what conduct is actually being challenged, not to determine 

whether the conduct is actionable’ ”].) Accordingly, the trial court did not err 

in denying Oswit’s anti-SLAPP motion as to the breach of contract claim.

3. Nuisance and Nuisance Per Se

Oswit also claims the HOA’s nuisance causes of action are entirely 

based on Oswit’s public statements because Oswit did not cause any of the 

alleged nuisances as a matter of fact and law. As an initial matter, it appears 

Oswit forfeited this contention by not raising it in its anti-SLAPP motion 

below. (See Premier Medical Management Systems, Inc. v. California Ins. 

9 Although the HOA’s subjective intent in filing the lawsuit is not 

relevant under the anti-SLAPP statute (City of Cotati v. Cashman (2002) 29 

Cal.4th 69, 78), it is worth noting that Oswit’s logic does not follow. If the 

HOA’s allegations were based on Oswit’s public statements and it filed suit to 

chill Oswit’s speech, success in silencing Oswit would not achieve the desired 

result of preventing Oswit from turning the golf course into a nature 

preserve. This further confirms that the purchase of the property and 

initiation of the conversion, not Oswit’s statements about the conversion to a 

nature preserve, form the basis for Oswit’s alleged liability. 
16

Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [generally the “[f]ailure to 

raise specific challenges in the trial court forfeits the claim on appeal”].)

In providing guidance regarding “the showings and findings required 

by section 425.16(b),” our Supreme Court explained that “[a]t the first step, 

the moving defendant bears the burden of identifying all allegations of 

protected activity, and the claims for relief supported by them.” (Baral v. 

Schnitt (2016) 1 Cal.5th 376, 396.) The focus is on whether the allegations 

supply the elements of a cause of action. (Bonni, supra, 11 Cal.5th at 

p. 1012.) In other words, Oswit was required to identify the allegations in the 

complaint that it believed arose from protected activity and the claims for 

relief supported by those allegations. While the anti-SLAPP motion need not 

seek to strike the entire cause of action, the movant must still identify the 

relevant causes of action. (See id. at pp. 1010–1011.) However, in discussing 

prong one in its anti-SLAPP motion, Oswit referenced only the first cause of 

action for breach. It made no mention of how the allegations supplied 

elements of the nuisance causes of action. Thus, Oswit forfeited its prong one 

challenge to these claims.

Even if we address its arguments on the merits, Oswit has not 

overcome its burden of showing the HOA’s nuisance claims arose from 

protected activity. “Anything which is injurious to health . . . or is indecent or 

offensive to the senses, or an obstruction to the free use of property, so as to 

interfere with the comfortable enjoyment of life or property, or unlawfully 

obstructs the free passage or use, in the customary manner, of any . . . public 

park, square, street, or highway, is a nuisance.” (Civ. Code, § 3479.) 

“A public nuisance is one which affects at the same time an entire community 

or neighborhood, or any considerable number of persons, although the extent 

of the annoyance or damage inflicted upon individuals may be unequal.” (Id., 
17

§ 3480.) Every nuisance that is not a public nuisance is a private nuisance.

(Id., § 3481.)

“ ‘[T]o be considered a nuisance per se the object, substance, activity or 

circumstance at issue must be expressly declared to be a nuisance by its very 

existence by some applicable law.’ ” (City of Monterey v. Carrnshimba (2013) 

215 Cal.App.4th 1068, 1086.) If the use of a property violates the applicable 

statute, “ ‘ “no proof is required, beyond the actual fact of their existence, to 

establish the nuisance.” ’ ” (City of Dana Point v. New Method Wellness, Inc.

(2019) 39 Cal.App.5th 985, 989.)

Here, Oswit does not make clear how its allegedly protected activity of 

making written and oral statements about converting the golf course into a 

preserve supplied the elements of the HOA’s nuisance causes of action. Its 

only argument is that the time frame of, at most, 21 days between when it

purchased the property and when the HOA filed suit presented an 

insufficient amount of time for it to have caused any of the alleged nuisances. 

It claims it “merely purchased the property for its stated public interest and 

communicated to the public its intentions to forever protect the property.” As 

a result, it contends the HOA must be relying on Oswit’s public statements to 

establish that Oswit created the nuisance or permitted nuisance conditions to 

exist. 

The problem with this argument is that what Oswit ultimately 

challenges is the truth of the HOA’s allegations and the HOA’s ability to 

prove Oswit substantially interfered with the HOA’s comfortable enjoyment 

of the property. But these are not issues to be decided at prong one of the 
18

section 425.16 test.10 At this stage, we consider only whether the claims

alleged in the complaint arise from protected speech or petitioning activity;

“ ‘[w]e do not consider the veracity of [the plaintiff’s] allegations’ [citation] nor 

do we consider ‘[m]erits based arguments.’ ” (Sprengel v. Zbylut (2015) 241 

Cal.App.4th 140, 156.) Although we need not accept the HOA’s allegations as 

true (Wilson, supra, 7 Cal.5th at p. 887), neither must we accept Oswit’s 

contrary factual assertion that it did not cause any of the alleged nuisances. 

Whether Oswit could have actually caused, or failed to abate, nuisance 

conditions during the 21 days it owned the property before the HOA filed 

suit, and whether its’ actions could have resulted in conditions that

substantially interfered with the HOA’s enjoyment of the property (see 

Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority

(2022) 83 Cal.App.5th 1137, 1176 [a successful private nuisance cause of 

action requires proof that the defendant interfered with the use and 

enjoyment of the property and that said interference was substantial]) are 

factual issues to be decided on the merits at a later date. Accordingly, we 

conclude Oswit has not met its burden on prong one of the anti-SLAPP 

analysis.

4. Declaratory Relief

Oswit contends the HOA’s declaratory relief cause of action is 

derivative of its claims for breach of contract and nuisance and, therefore, 

must also fail. However, because we disagree that Oswit has met its burden 

under the anti-SLAPP framework as to the HOA’s first, second, and third 

causes of action, by its own admission, its assertions as to the seventh cause 

of action must also be found lacking. The “actual controversy” the HOA 

10 And indeed, in its anti-SLAPP motion below, Oswit made these 

arguments as part of its prong two analysis under the heading “Plaintiff 

Must Show It Will Probably Prevail on Its Claims.” 
19

alleges relates to whether the lease and CC&Rs require Oswit to maintain 

and operate the golf course. For the reasons explained above, Oswit may 

have conveyed its intent to transform the golf course into a nature preserve, 

but this does not convert the statements themselves into the basis for 

liability. 

DISPOSITION

The judgment is affirmed. The HOA is entitled to its costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

DATO, J.