Opinion
2d Civil No. B222079 Super. Ct. No. 1272566
08-08-2011
PETER CARGASACCHI et al., Plaintiffs, Cross-defendants and Appellants, v. LABARGE VINEYARDS, LLC, Defendant, Cross-Complainant and Respondent.
The Law Offices of E. Patrick Morris, PC, E. Patrick Morris for Plaintiffs and Appellants. Diana M. Matsinger; Casati & Associates, Alessandro L. Casati; Logue Law, Travis C. Logue for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Barbara County)
Peter, Julia, John, Paula, Mark, and Giovanni Cargasacchi (the Cargasacchis) appeal orders of the trial court denying their motions to strike the cross-complaint of LaBarge Vineyard, LLC (LaBarge), pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.We affirm.
All further statutory references are to the Code of Civil Procedure unless stated otherwise.
FACTS AND PROCEDURAL HISTORY
The Cargasacchis and LaBarge engage in viniculture in northern Santa Barbara County on their respective parcels of property. LaBarge recently purchased its 40-acre parcel and commenced preparing the land to plant grapevine stock. The Cargasacchis objected to LaBarge's alleged interference with road easements (an upper road and a lower road) that they used to access their vineyards. The Cargasacchis claimed that they obtained the easements over the LaBarge parcel by a 1977 recorded deed and a 1990 recorded Memorandum of Agreement.
On April 3, 2009, the Cargasacchis filed a second amended complaint against LaBarge and others, alleging causes of action for quiet title, declaratory relief, and injunctive relief. Contentious litigation ensued--demurrers, discovery disputes, and applications for temporary restraining orders. On August 26, 2009, the parties stipulated that the Cargasacchis could have reasonable use of the upper road traversing LaBarge's parcel pending further court order.
On September 14, 2009, LaBarge filed a verified cross-complaint against the Cargasacchis, alleging that they prevented LaBarge from planting its vineyard by physically blocking and intimidating its workers. LaBarge stated: "Cross-Defendants and their agents have been systematically and substantially interfering with Cross-Complainant's planting of a vineyard . . . . On multiple occasions, Cross-Defendants and their agents have verbally and physically intimidated Cross-Complainant's workers performing labor on the LaBarge Property. On multiple occasions, Cross-Defendants and their agents have used their motor vehicles in a threatening and intimidating manner to block and prevent Cross-Complainants' workers from performing labor on the LaBarge Property." The cross-complaint alleged causes of action for interference with economic and contractual relationships, trespass, nuisance, and slander of title, among others.
The Cargasacchis then filed a motion to strike the cross-complaint, asserting that it was a SLAPP action filed in retaliation for their prosecution of the lawsuit against LaBarge. (§ 425.16.) In part, the Cargasacchis relied on an unattested statement by LaBarge owner, Pierre LaBarge, that was presented to the trial court on an earlier motion, but that was not filed with the court or considered in its ruling. Following argument, the court denied the motion to strike the cross-complaint. In ruling, the trial judge stated that the allegations of "actions taken against the workers," e.g., "intimidation, physical abuse, verbal abuse," distinguished the cross-complaint from a SLAPP action.
Several weeks later, other Cargasacchi cross-defendants filed a motion to strike the cross-complaint, relying in part on their declarations denying interference with LaBarge viniculture activities. The trial court also denied this second motion to strike.
The Cargasacchis appeal the trial court's orders denying the two motions to strike LaBarge's cross-complaint pursuant to the anti-SLAPP statute.
DISCUSSION
The Cargasacchis argue that the cross-complaint is a derivative tort action brought by LaBarge to burden their right to petition the court to redress grievances. They assert that the cross-complaint improperly challenges their privileged communications and conduct regarding the pending lawsuit, e.g., delivering a "cease and desist" letter to LaBarge, or complaining to local authorities regarding LaBarge's grading activities on the parcel. (§ 425.16, subd. (e)(1) & (2); Civ. Code, § 47, subd. (b); Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908 [filing a lawsuit is an exercise of the right to petition and statements made in connection with litigation are subject to the anti-SLAPP law].) The Cargasacchis rely upon the unsworn statement of Pierre LaBarge to support their arguments.
The anti-SLAPP statute provides that "[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).) We review the trial court's ruling on an anti-SLAPP motion de novo. (WorldFinancial Group, Inc. v. HBWIns. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1568.)
A defendant or cross-defendant who files an anti-SLAPP motion bears the threshold burden of showing that the complaint "aris[es] from" protected activity. (§ 425.16, subd. (b)(1); World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc., supra, 172 Cal.App.4th 1561, 1568; California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1036.) Only if the defendant makes that showing, the burden shifts to the plaintiff to show a probability of prevailing. (Ibid.)
In determining whether the complaint arises from protected activity, we must focus on the substance of the lawsuit. "[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.) The principal thrust or gravamen of a cause of action determines whether the anti-SLAPP statute applies. (California Back Specialists Medical Group v. Rand, supra, 160 Cal.App.4th 1032, 1037.) "The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning." (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.) The anti-SLAPP statute does not apply where the protected activity is only collateral or incidental to the act forming the basis for the complaint. (California Back Specialists Medical Group, at p. 1037.)
The trial court properly denied the anti-SLAPP motions because the Cargasacchis did not establish that the cross-complaint arose from a protected act, i.e., the right of petition or free speech. The principal thrust of the verified cross-complaint is set forth in paragraphs 19 and 20, and states that cross-defendants and their agents have verbally and physically intimidated LaBarge's employees, blocked their access with motor vehicles, and prevented their labor in the vineyard. The cross-complaint plainly challenged unprotected conduct that could in itself be the basis for a separate lawsuit by LaBarge.
The Cargasacchis did not establish a threshold showing under the anti-SLAPP statute. For this reason, LaBarge did not bear the burden of proving the probability of prevailing on the cross-complaint. The Cargasacchis' declarations regarding the lack of merit of the cross-complaint are unnecessary and unavailing. (Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 31-32; id. at p. 32 [considering merits of complaint without first ascertaining if threshold showing exists improperly turns anti-SLAPP statute "into a cheap substitute for summary judgment"].)
Our resolution of this appeal does not consider the LaBarge statement. (Morgan v. United Retail Inc. (2010) 186 Cal.App.4th 1136, 1141, fn. 4 [appellate court may disregard portions of brief referring to matters not properly before court].) The trial court did not file the statement nor did it consider the statement in its ruling. Although the trial court took judicial notice of the statement on one occasion, judicial notice of a document does not establish the truth of its contents. (North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 778.) The LaBarge statement has no evidentiary value because it was not sworn under penalty of perjury pursuant to section 2015.5. (Baron v. Mare (1975) 47 Cal.App.3d 304, 312 [declaration "statutorily insufficient in its formal requirements" not considered by trial court].)
The orders are affirmed. LaBarge shall recover costs on appeal.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
COFFEE, J.
PERREN, J.
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
The Law Offices of E. Patrick Morris, PC, E. Patrick Morris for Plaintiffs and Appellants.
Diana M. Matsinger; Casati & Associates, Alessandro L. Casati; Logue Law, Travis C. Logue for Defendant and Respondent.