1

Filed 5/3/23 Brar v. Sourdough & Co. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

GURPREET BRAR et al.,

Plaintiffs, Cross-defendants and 

Respondents,

v.

SOURDOUGH & CO., INC.,

Defendant, Cross-complainant and 

Appellant.

C095424

(Super. Ct. No. 

34202100304530CUBTGDS)

This case arises out of purported licensing agreements to operate sandwich shops

under the trademark “Sourdough & Co.” The trial court granted a motion under Code of 

Civil Procedure section 425.16 filed by plaintiffs and cross-defendants Gurpreet Brar, 

Harman Brar, Amanpreet Toor, Sukhdev Singh, and Arvinbrar, Inc. (the licensees) to 

strike a cause of action for fraud and deceit in a cross-complaint filed by Sourdough & 

Co, Inc. (Sourdough).1 “Familiarly known as the anti-SLAPP statute, [section 425.16]

1

 Undesignated statutory references are to the Code of Civil Procedure.
2

allows defendants to seek early dismissal of unmeritorious claims arising from protected 

speech and petitioning activities.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 

995, 1004.)

On appeal, Sourdough argues the trial court erred in granting the licensees’ antiSLAPP motion because: (1) its claim for fraud and deceit is covered by the commercial 

speech exemption to the anti-SLAPP statute; (2) the fraud and deceit claim does not arise 

out of protected activity; and (3) it showed a probability of success on this claim. 

We will affirm. 

I. BACKGROUND

The complaint filed by the licensees alleges the following: 

In November 2018, Sukhdev Singh entered into a purported licensing agreement 

with Sourdough to use certain trademarks and trade secret recipes for the operation of a 

fast-casual sandwich shop. In March 2019, Singh, Amanpreet Toor, Gurpreet Brar, and 

Harman Brar entered into another purported licensing agreement with Sourdough for the 

operation of additional sandwich shops. These individuals subsequently assigned their 

rights under these agreements to Arvinbrar, Inc. Arvinbrar paid approximately five

percent of gross sales to Sourdough. 

In June 2020, the licensees notified Sourdough that they were rescinding the 

agreements and considered them unenforceable. In July 2021, the licensees filed the 

underlying action alleging numerous causes of action against Sourdough. As relevant to 

this appeal, the licensees alleged Sourdough violated the Franchise Investment Law 

(Corp. Code, § 31000 et seq.) by selling unregistered franchises. The licensees alleged 

that though the agreements were not called franchise agreements, the transactions met the 

elements of a franchise under Corporations Code section 31005, and Sourdough had not 

provided required disclosures. 
3

Sourdough filed a cross-complaint against the licensees that alleged causes of 

action for breach of contract and for fraud and deceit. The second cause of action for 

fraud and deceit is the focus of this appeal. It alleges: 

“13. At the time each [licensee] executed their respective license agreement(s) 

they represented to [Sourdough] (as Licensor) that they were aware that the license 

agreement was not a franchise, was not intended to be a franchise, and that Licensor may 

subsequently seek to obtain franchise rights in the future (see section 2.2). 

“14. At the same time, [licensees] further represented to [Sourdough] that they 

understood and agreed that ‘Licensor shall have no responsibility, and shall not undertake 

to direct Licensee’s business operations and marketing plans’ and that ‘Licensor does not 

claim to have any valuable or proven successful business operations or methods of doing 

business, nor does Licensor offer Licensee any guidance, dictates, or recommendations 

regarding same.’ They further represented that they were ‘solely responsible to 

determine [their] own successful business methods and marketing plan, if any,’ and 

acknowledged that ‘the fees paid pursuant to [the license agreements] are consideration 

solely for Licensor’s valuable intellectual property and the goodwill which Licensor’s 

Marks, recipes, preparation methods, and trade dress have become known for.’

“15. At the same time, the [licensees] represented to [Sourdough] that they 

intended nothing in the agreements to be subject to any franchise or similar law, rule, or 

regulation, to which it would not otherwise be subject, of the state where the Restaurants 

are located or of the State of California. They further represented and warranted the 

following: 

“Licensee represents and warrants that he/she/it has been represented by a licensed 

California attorney of its choice (__[e.g., MICHAEL BARETT]___) with respect to the 

negotiation and drafting of this Agreement and under guidance of said counsel has made 

its own determination that this Agreement complies with all applicable provisions of 

California law, including without limitation Corporations Code §§ 31000, et seq. 
4

“16. The foregoing representations were false, and the [licensees] have taken 

positions in this lawsuit in direct contravention of their representations and warranties, all 

to the damage and detriment of [Sourdough], subject to proof at trial. 

“17. [Sourdough] reasonably relied on the foregoing representations and 

warranties made by the [licensees], and would not have entered into the license 

agreements in the absence of such representations and warranties.”

“18. [Sourdough] is entitled to recover both monetary and injunctive relief against 

each [licensee], subject to proof at trial.” (Underscoring omitted.) 

The licensees responded to the cross-complaint with a motion to strike the cause 

of action for fraud and deceit under the anti-SLAPP statute. 

The trial court granted the motion. The court rejected Sourdough’s assertion that 

its cause of action for fraud and deceit was exempt from the anti-SLAPP statute under the 

commercial speech exemption. Additionally, the court agreed with the licensees’ 

assertion that this cause of action arose from protected activity because the element of 

resulting damage necessary to establish the cause of action relied solely on the filing of 

the licensees’ complaint. The trial court found Sourdough did not “substantively 

counter” this argument nor did it “indicate that it can establish all of the elements of its 

claim of fraud without relying on [the licensees]’ protected activity of filing the 

Complaint.” The trial court found Sourdough had not established a probability it would 

prevail on its claims, because its damages derived from the licensees filing of their 

complaint and that filing was protected by the litigation privilege of Civil Code section 

47. 

Sourdough filed a timely notice of appeal. 

No party filed a respondent’s brief. Where no respondent’s brief has been filed, 

we may decide the appeal on the record, the opening brief, and any oral argument by the 

appellant. (Cal. Rules of Court, rule 8.220(a)(2), (c).) Sourdough “still bears the 

‘affirmative burden to show error whether or not the respondent’s brief has been filed,’ 
5

and we ‘examine the record and reverse only if prejudicial error is found.’ ” (Smith v. 

Smith (2012) 208 Cal.App.4th 1074, 1078.)

II. DISCUSSION

A. Statutory Background

The anti-SLAPP statute provides: “A cause of action against a person arising 

from any act of that person in furtherance of the person’s right of petition or free speech 

under the United States Constitution or the California Constitution in connection with a 

public issue shall be subject to a special motion to strike, unless the court determines that 

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

claim.” (§ 425.16, subd. (b)(1).) 

“Anti-SLAPP motions are evaluated through a two-step process. Initially, 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. [Citations.] 

If the defendant carries its burden, the plaintiff must then demonstrate its claims have at 

least ‘minimal merit.’ ” (Park v. Board of Trustees of California State University (2017) 

2 Cal.5th 1057, 1061 (Park).) Whether the commercial speech exemption applies is a 

first-step determination. (Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 308.)

Our Supreme Court has described the “ ‘second step as a “summary-judgment-like 

procedure.” [Citation.] The court does not weigh evidence or resolve conflicting factual 

claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim 

and made a prima facie factual showing sufficient to sustain a favorable judgment.’ ” 

(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) “[A] plaintiff seeking to 

demonstrate the merit of the claim ‘may not rely solely on its complaint, even if verified; 

instead, its proof must be made upon competent admissible evidence.’ ” (Ibid.)

“The grant or denial of an anti-SLAPP motion is reviewed de novo.” (Monster 

Energy Co. v. Schechter, supra, 7 Cal.5th at p. 788.) 
6

B. Commercial Speech Exemption

Sourdough argues the trial court erred in granting the licensees’ anti-SLAPP 

motion because its claims are exempt from the anti-SLAPP statute under the commercial 

speech exemption set forth in section 425.17, subdivision (c). We disagree.

Section 425.17, subdivision (c) provides, in relevant part, that the anti-SLAPP 

statute, section 425.16, “does not apply to any cause of action brought against a person 

primarily engaged in the business of selling or leasing goods or services, . . . arising from 

any statement or conduct by that person if both of the following conditions exist:

“(1) The statement or conduct consists of representations of fact about that 

person’s or a business competitor’s business operations, goods, or services, that is made 

for the purpose of obtaining approval for, promoting, or securing sales or leases of, or 

commercial transactions in, the person’s goods or services, or the statement or conduct 

was made in the course of delivering the person’s goods or services.

“(2) The intended audience is an actual or potential buyer or customer, or a person 

likely to repeat the statement to, or otherwise influence, an actual or potential buyer or 

customer.”

“[T]he language of section 425.17, subdivision (c) and subsequent case law 

indicate that the provision exempts ‘only a subset of commercial speech’—specifically, 

comparative advertising.” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 

147.) The exemption is construed narrowly. (JAMS, Inc. v. Superior Court (2016) 1 

Cal.App.5th 984, 992.) “ ‘[T]he party seeking the benefit of the commercial speech 

exemption[,] [has] the burden of proof on each element.’ [Citation.] ‘We review the 

applicability of the commercial speech exemption independently.’ ” (Ibid.)

Here, the trial court noted Sourdough appeared to argue it was a potential buyer or 

customer of the licensees but did not elaborate on this argument or supply any legal 

authority to support it. The trial court also found the alleged statements reflect the 

licensees “ ‘understanding and intentions with respect to the subject trademark license 
7

agreement, not representations of fact about [their] products, services, or business 

operations.’ ” The court also found the alleged misrepresentations were not made for the 

purpose of securing sales of or commercial transactions in the licensees’ goods or 

services but rather for the purpose of obtaining rights to Sourdough’s trademarks and 

recipes. 

On appeal, Sourdough argues the representations alleged in its cross-complaint 

pertain to speech about the licensees’ operation of restaurants under license from 

Sourdough. Further, Sourdough argues the licensees made these representations to 

secure the license agreements that would allow them to operate restaurants under 

Sourdough’s brand. Sourdough still fails to adequately address how the intended 

audience of these representations was a potential buyer or customer within the meaning 

of the statute. We find no merit to Sourdough’s assertion that it can avail itself of section 

425.17, subdivision (c).

C. Arising from Protected Activity

As set forth above, “[a]nti-SLAPP motions may only target claims ‘arising from 

any act of [the defendant] in furtherance of the [defendant’s] right of petition or free 

speech under the United States Constitution or the California Constitution in connection 

with a public issue . . . .’ (§ 425.16, subd. (b).)” (Park, supra, 2 Cal.5th at p. 1062.) 

Sourdough argues the trial court erred in granting the licensees’ motion because this first 

step requirement was not met. 

“In deciding whether the initial ‘arising from’ requirement is met, a court 

considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon 

which the liability or defense is based.’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

Under the anti-SLAPP statute, an “ ‘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 . . . any written . . . statement or writing made before a . . .

judicial proceeding.” (§ 425.16, subd. (e)(1).) The filing of the licensees’ complaint was 
8

therefore a protected activity under the anti-SLAPP statute. (Navellier v. Sletten, supra, 

29 Cal.4th at p. 90.) Sourdough’s cross-complaint expressly alleges the licensees “have 

taken positions in this lawsuit in direct contravention of their representations and 

warranties, all to the damage and detriment of [Sourdough].” Sourdough nonetheless 

disputes that its cause of action for fraud and deceit arises from this protected activity. 

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

basis for the claim.” (Park, supra, 2 Cal.5th at p. 1062.) “[C]ourts are to ‘consider the 

elements of the challenged claim and what actions by the defendant supply those 

elements and consequently form the basis for liability.’ ” (Bonni v. St. Joseph Health 

System, supra, 11 Cal.5th at p. 1009.) “When a party pleads a cause of action that rests 

on allegations of multiple acts, a court must analyze each action to determine whether it 

is protected. [Citation.] Courts may consider the ‘gravamen’ of claims to determine 

whether particular acts are elements, as opposed to incidental background, but not to 

determine the essence of a mixed cause of action.” (Cordoba Corporation v. City of 

Industry (2023) 87 Cal.App.5th 145, 151; see Bonni, supra, at p. 1010 [explaining a socalled “ ‘mixed cause of action’ ” is one “that rests on allegations of multiple acts, some 

of which constitute protected activity and some of which do not”].)

Our dissenting colleague misreads Park and City of Cotati v. Cashman (2002) 29 

Cal.4th 69 by failing to appreciate that the latter involved an action for declaratory relief 

and “ ‘[t]he fundamental basis of declaratory relief is the existence of an actual, present 

controversy over a proper subject.’ ” (Id. at p. 79, italics omitted.) Here, the cause of 

action at issue is one for fraud and deceit. As such, the relevant inquiry is not whether 

Sourdough “could demonstrate the existence of a bona fide controversy between the 

parties supporting a claim for declaratory relief without” Brar’s lawsuit. (Park, supra, 2 

Cal.5th at p. 1064.) Rather, we ask whether Sourdough could demonstrate the elements 

of fraud and deceit without Brar’s lawsuit. Here, the pleadings and supporting 

declarations demonstrate it cannot. “ ‘ “ ‘The elements of fraud, which give rise to the 
9

tort action for deceit, are (a) misrepresentation (false representation, concealment, or 

nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to 

induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” ’ ” (Golden Eagle 

Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 428.) 

Sourdough argues its fraud and deceit claim is “premised upon” and “targets” 

misrepresentations made at the time the license agreements were entered into. While that 

may be true, it only renders the fraud and deceit claim a mixed cause of action because 

the cross-complaint alleges the complaint is the sole basis of resulting damages. 

Sourdough never directly addresses the trial court’s concern that Sourdough did not 

indicate it could establish all of the elements of its claim without relying on the protected 

activity of the licensees’ filing of the complaint for the resulting damage element. Nor 

has Sourdough improved upon its showing in this court. Paragraph 9 of the crosscomplaint, cited only by our dissenting colleague, alleges various breaches of the license 

agreements, and not, as our dissenting colleague suggests, “a laundry list of damages 

alleged to have been suffered by Sourdough arising from Brar’s fraud.” (Dis. opn. at 

p. 2.) Sourdough has failed to demonstrate the trial court erred in concluding that the

cause of action for fraud and deceit rose out of protected activity, and we proceed to the 

second step of the anti-SLAPP analysis. (Bonni v. St. Joseph Health System, supra, 11 

Cal.5th at p. 1010.) 

D. Probability of Success

Sourdough argues it showed the requisite probability of success on its fraud claim 

to defeat the licensees’ motion at the second step of the anti-SLAPP analysis. We 

disagree. The trial court found Sourdough had not established a probability it would 

prevail on its claims because its damages derived from the licensees’ filing of their 

complaint, and that filing was protected by the litigation privilege. (Navellier v. Sletten

(2003) 106 Cal.App.4th 763, 772.) Sourdough argues the harm that gives rise to its claim 

for damages “also occurred prior to the commencement of the litigation. That is, as 
10

alleged in the Complaint, [it] would not have entered into the licensee agreements at all 

had it not been for the alleged fraud and deceit.” Sourdough cites a declaration from its 

Chief Executive Officer stating, “[h]ad I been aware that Cross-Defendant had not 

consulted with counsel prior to signing his license agreements, I would not have entered 

into them on behalf of the Company.” But this evidence goes to reliance: “Reliance 

exists when the misrepresentation or nondisclosure was an immediate cause of the 

plaintiff’s conduct which altered his or her legal relations, and when without such 

misrepresentation or nondisclosure he or she would not, in all reasonable probability, 

have entered into the contract or other transaction.” (Alliance Mortgage Co. v. Rothwell

(1995) 10 Cal.4th 1226, 1239.) “[U]nless the plaintiff merely seeks to rescind the 

contract, it must suffer actual monetary loss to recover on a fraud claim.” (Id. at p. 1240.) 

Sourdough does not seek recission and it cites no authority indicating its nonprivileged 

evidence was sufficient to demonstrate resulting damage or otherwise obviate the need to 

demonstrate resulting damage. 

Sourdough has failed to demonstrate any error in the court’s decision to strike its 

cause of action for fraud and deceit.
11

III. DISPOSITION

The order granting the anti-SLAPP motion is affirmed. Because no respondent 

appeared in this appeal, no party shall recover costs. (Cal. Rules of Court, rule

8.278(a)(5).)

/S/

 

RENNER, J.

I concur:

/S/

 

MAURO, J.
1

Hull, J. dissenting.

The majority opinion holds that Sourdough & Co., Inc.’s (Sourdough) crosscomplaint, insofar as it alleges civil fraud against plaintiffs (Brar), is barred by 

application of what is commonly known as the “anti-SLAPP” statute, Code of Civil 

Procedure section 425.16. (Statutory section references that follow are to the Code of 

Civil Procedure.)

If I understand the majority opinion correctly, this is so because Sourdough’s 

damages for fraud, an element of their cross-complaint, did not arise until Brar filed its 

complaint against Sourdough alleging various causes of action arising out of the parties’ 

business transactions because only then was Sourdough “damaged.” And the Brar 

complaint being a protected activity within the meaning of section 425.16, its filing 

prevents Sourdough from pursuing its cross-complaint for fraud.

It would appear the majority’s decision that Sourdough’s cross-complaint arose 

from Brar’s protected activity in filing its complaint is grounded, without elaboration, on 

the majority’s statement that, “Sourdough never directly addresses the trial court’s 

concern that Sourdough did not indicate it could establish all of the elements of its claim 

without relying on the protected activity of [Brar’s] filing of the complaint for the 

resulting damage element. [Emphasis added.]” (Maj. opn. at pp. 8-9.) I confess I am not 

sure what the phrase “for the resulting damage element” means but as noted above, it 

apparently means that Sourdough’s damages only arose when, and were dependent upon, 

Brar’s filing of its complaint.

If my interpretation of the majority’s reasoning is correct, if it can be read to hold 

that a fraud cause of action necessarily violates section 425.16 if it depends in any part on 

the defrauding party’s filing a complaint evidencing its fraud, this holding is far too 

broad. It is in the nature of a cross-complaint to allege and make reference to the crossdefendant’s actions that evidence the alleged fraud even if, in appropriate circumstances 
2

such as those we have here, those actions are memorialized or acknowledged in a crossdefendant’s original and earlier filing of a complaint against the cross-complainant. If the 

proper allegations of fraudulent conduct are made in the cross-complaint, but only 

evidenced by the original complaint’s allegations, that cross-complaint does not cross 

into the territory of the anti-SLAPP statute. Thus, if the proper allegations as to the 

elements of civil fraud, including damages, are made without reference to the allegations 

set forth in a lawsuit, that cross-complaint does not arise from protected activity, but 

instead from actions underlying the elements of fraud that occurred separate from the 

filing of the defrauding party’s lawsuit.

Sourdough’s action for fraud stumbles somewhat here by alleging in paragraph 16 

of the cross-complaint that Brar’s representations made at the time the parties to this 

lawsuit entered into these agreements “were false, and [Cross-Defendants] have taken 

positions in this lawsuit in direct contravention of their representations and 

warranties . . . .” 

That is, the allegations of Sourdough’s cross-complaint appear to depend in part 

for their truth on the positions Brar has set out in their complaint, the filing of which is 

activity that is protected by section 426.16.

This allegation, though, is not in and of itself the sole basis for Sourdough’s claim 

of fraud. That is, Brar’s filing of the complaint, a protected activity, did not constitute the 

fraud, but only provided evidence of its earlier fraudulent conduct when it entered into 

the contracts – long before the filing of the complaint – with Sourdough.

And there is more to the cross-complaint than paragraph 16. Paragraph 12 of the 

cross-complaint incorporates by reference paragraphs 1 through 10 of the crosscomplaint. Among other things, those paragraphs include paragraph 9 which sets forth a 

laundry list of damages alleged to have been suffered by Sourdough arising from Brar’s 

fraud, damages which a fair reading of the cross-complaint must necessarily have come 

into being before the filing of Brar’s complaint.
3

Moreover, in paragraphs 13 of the cross-complaint, Sourdough alleges, tellingly, 

that, “[A]t the time [Brar] executed their respective license agreement(s)” Brar made 

certain representations to Sourdough. Again in paragraph 14 Sourdough alleges that 

Brar, at the time of the execution of the license agreements, made other representations 

and in paragraph 15 Sourdough alleges that Brar, again at the time it entered into the 

licensing agreements, made certain representations to Sourdough all of which, according 

to paragraph 16 were false and, upon which Sourdough relied to its detriment according 

to paragraph 17 of the complaint. All false representations made by Brar and relied on by 

Sourdough occurred when the agreements were entered into according to the crosscomplaint’s allegations.

Conceptually, a civil fraud occurs at the time the fraudulent conduct takes place 

and is relied upon by the defrauded party. Here, that is, at the time the license agreement 

was entered into which was an event far removed in time from the filing of Brar’s 

complaint and was based upon actions that were factually distinct from that filing.

Analytically then, this holding should not have much to do with resulting damages

but should instead talk about the extent to which the cross-complaint depended upon a 

protected activity for its basis.

In my view, the answer in this appeal lies with the holding in Park v. Board of 

Trustees of California State University (2017) 2 Cal.5th 1057 (Park) and the discussion 

and citations in Park to City of Cotati v. Cashman (2002) 29 Cal.4th 69 and Navellier v. 

Sletten (2002) 29 Cal.4th 82. I quote the discussion in Park at length below.

After beginning its analysis by observing that “a claim arises from protected 

activity when that activity underlies or forms the basis for the claim. [Citations 

omitted.]” (Park, supra, 2 Cal.5th at p. 1062.) Park continued:

“Critically, ‘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.’ (City of 
4

Cotati,[ supra, 29 Cal.4th] at p. 78; accord, Equilon Enterprises[ v. Consumer Cause, 

Inc., 29 Cal.4th 53, 66].) ‘[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 antiSLAPP statute.’ (Navellier v. Sletten, supra, 29 Cal.4th at p. 89; see City of Cotati, at 

p. 78 [suit may be in ‘response to, or in retaliation for,’ protected activity without 

necessarily arising from it].) Instead, the focus is on determining what ‘the defendant’s 

activity [is] that gives rise to his or her asserted liability—and whether that activity 

constitutes protected speech or petitioning.’ (Navellier, at p. 92, italics omitted.) ‘The 

only means specified in section 425.16 by which a moving defendant can satisfy the 

[“arising from”] requirement is to demonstrate that the defendant’s conduct by which 

plaintiff claims to have been injured falls within one of the four categories described in 

subdivision (e). . . .’ (Equilon Enterprises, at p. 66, italics added.) In short, in ruling on 

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.

“Thus, for example, in City of Cotati v. Cashman, supra, 29 Cal.4th 69, the 

plaintiff city filed a state suit seeking a declaratory judgment that its rent control 

ordinance was constitutional. The suit followed in time the defendant owners’ federal 

suit seeking declaratory relief invalidating the same ordinance. In the state action, the 

defendants filed an anti-SLAPP motion alleging the suit arose from their protected 

activity of filing the federal suit. The motion, we explained, should have been denied 

because the federal suit formed no part of the basis for the state claim. The city’s 

potential entitlement to a declaratory judgment instead arose from the parties’ underlying 

dispute over whether the ordinance was constitutional, a dispute that existed prior to and 

independent of any declaratory relief action by the owners. (Id. at p. 80.)
5

“In contrast, in Navellier v. Sletten, supra, 29 Cal.4th 82, another case in which the 

defendant’s protected activity was the prior filing of court claims, the prior claims were 

an essential part of the activity allegedly giving rise to liability. The Navellier plaintiffs 

sued for breach of contract and fraud, alleging the defendant had signed a release of 

claims without any intent to be bound by it and then violated the release by filing 

counterclaims in a pending action in contravention of the release’s terms. Unlike in City 

of Cotati, the defendant was ‘being sued because of the affirmative counterclaims he filed 

in federal court. In fact, but for the federal lawsuit and [the defendant’s] alleged actions 

taken in connection with that litigation, plaintiffs’ present claims would have no basis. 

This action therefore falls squarely within the ambit of the anti-SLAPP statute's “arising 

from” prong.’ (Navellier, at p. 90.)

“While in both cases it could be said that the claim challenged as a SLAPP was 

filed because of protected activity, in that perhaps the City of Cotati plaintiff would not 

have filed suit had the defendant not done so first, in only Navellier did the prior 

protected activity supply elements of the challenged claim. The City of Cotati plaintiff 

could demonstrate the existence of a bona fide controversy between the parties 

supporting a claim for declaratory relief without the prior suit, although certainly the 

prior suit might supply evidence of the parties’ disagreement. (Emphasis added.) In 

contrast, specific elements of the Navellier plaintiffs’ claims depended upon the 

defendant’s protected activity. The defendant’s filing of counterclaims constituted the 

alleged breach of contract. (Navellier v. Sletten, supra, 29 Cal.4th at p. 87.) Likewise, 

the defendant’s misrepresentation of his intent not to file counterclaims, a statement we 

explained was protected activity made in connection with a pending judicial matter (see 

§ 425.16, subd. (e)(1), (2)), supplied an essential element of the fraud claim (Navellier, at 

pp. 89–90). Together, these cases reflect what we have described elsewhere, in a nonSLAPP context, as ‘a careful distinction between a cause of action based squarely on a 
6

privileged communication, such as an action for defamation, and one based upon an 

underlying course of conduct evidenced by the communication.’ (White v. Western Title 

Ins. Co. (1985) 40 Cal.3d 870, 888.)” (Park, supra, 2 Cal.5th at pp. 1063-1064, emphasis 

added.)

Here, the above discussion in Park and, in particular, those portions of the 

discussion that I have emphasized, leads me to the opinion that this SLAPP motion 

should have been denied. Conforming what I have emphasized above to the parties we 

have before us, Sourdough “could demonstrate the existence of a bona fide controversy” 

here without Brar’s lawsuit even though the Brar lawsuit might provide evidence of 

Brar’s alleged fraud. That result also follows if we make “a careful distinction between a 

cause of action based squarely on a privileged communication, such as an action for 

defamation, and one based upon an underlying course of conduct evidenced” in part, by 

the allegations of the Brar lawsuit.

I would reverse the trial court’s order granting the motion to strike the 

second cause of action of the cross-complaint.

/S/

 

HULL, Acting P. J.