Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. 37-2008-00098042- CU-BT-CTL, Steven R. Denton, Judge.
NARES, J.
This action arises from a lease/management agreement between El Capitan Golf Club, LLC (El Capitan) and Helix Water District (Helix) that provided for restoration of approximately 500 acres of land owned by Helix in the San Diego River basin (the Restoration Project), to be financed by selling sand excavated from the land leased by El Capitan. El Capitan alleges that Helix breached the agreement by combining the Restoration Project with development of a wastewater recycling program, reneging on its commitment to supply back-up water to the restoration project, and delaying the environmental review process by four years, thereby making the Restoration Project unfeasible.
El Capitan sued Helix for breach of the lease/management agreement, interference with prospective economic advantage, inverse condemnation and nuisance. Helix brought an anti-SLAPP special motion to strike under Code of Civil Procedure section 425.16, claiming that its communications with other governmental agencies and private parties to execute the two projects were constitutionally protected "petitioning activities" and matters of public interest.
All further statutory references are to the Code of Civil Procedure.
The court denied Helix's motion to strike, finding (1) El Capitan's second amended complaint did not arise out of activity related to a matter of "public interest;" and (2) the gravamen of El Capitan's action was not protected petitioning activities on the part of Helix.
Helix appeals, asserting (1) El Capitan's causes of action concern a matter of public interest; (2) El Capitan's causes of action all arise from Helix's protected petitioning activities; and (3) El Capitan did not show by admissible evidence a probability of prevailing on the merits of its claims. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because in assessing whether El Capitan's complaint is a "SLAPP" action we must accept as true the allegations of the complaint and evidence presented in opposition to Helix's motion to strike (Freeman v. Schack (2007) 154 Cal.App.4th 719, 733 (Freeman)), we take the factual background from the allegations in the complaint and the evidence El Capitan presented in opposition to Helix's motion to strike.
A. The Lease
Helix owns land in the San Diego River basin, northeast of Lakeside, California, in an area sometimes called the El Monte Valley or El Monte Basin. Helix leased some of that land (the Property) to El Monte Canyon, L.L.C. by a golf course construction and lease agreement dated February 1, 1997. El Capitan is El Monte Canyon, L.L.C.'s successor. The lease was amended and restated several times. As of January 23, 2004, Helix and El Capitan entered into a third restated and amended golf course construction and lease agreement (restated lease).
Under the restated lease, El Capitan was to construct and operate "two 18-hole golf courses" and use the Property for "other... incidental purposes...." The term of the lease is 63 years commencing February 7, 2001. The restated lease grants El Capitan the right to sell materials excavated from the property while paying Helix royalties. Exhibit H to the restated lease describes certain agreements concerning water usage.
The restated lease contains two agreements for cooperation between the parties. In paragraph 21.17, both parties "agree to cooperate fully, to work in good faith, and to mutually assist each other in the performance of this Lease." In paragraph 21.18, Helix promised specifically to support El Capitan in governmental approvals and El Capitan promised to pay Helix's actual costs for those services. Specifically the restated lease provides that "[Helix] shall (i) assist [El Capitan] in processing and securing any permits, (ii) review, process, and approve plans, and (iii) inspect the project, as necessary.... [Helix] staff shall present testimony in favor of the project at hearings on the project."
B. Golf Course Project is Converted to a River Restoration Project
As El Capitan was pursuing environmental approval for the golf course development, Helix agreed in an August 24, 1998 letter writing to provide "a supplemental water supply should the groundwater basin prove insufficient to support the subject golf course." Specifically, the agreement provided that "[Helix] will provide a supplemental water supply for the golf course in the event of a short fall of groundwater. It is understood that [Helix] does not have the facilities in the El Monte Valley to provide a potable supply, and that water provided is raw water, and cannot be used for human consumption."
In 1999 El Capitan procured an environmental impact report (EIR) for the golf course development. The EIR assumed a certain continuous water table level.
When the water table dropped, El Capitan notified Helix and developed a replacement for the outmoded revegetation plan for the Property. In response, Helix insisted that it would require off-site environmental mitigation. Buying off-site mitigation land would have made the golf course development financially unfeasible.
In late 2006 Helix approved in principle a complete revision to the objectives of the relationship between El Capitan and Helix. As described in a "[f]ramework [p]lan" presented to Helix's board by Helix's general manager, the golf course development concept would be dropped and the Restoration Project would be substituted. Instead of operation of golf courses as the financial engine of development, the Restoration Project would involve extracting "approximately 10 million tons of sand, recontouring the valley topography, and revegetating the river valley." The general manager's report stated that El Capitan obtained the approvals for the golf course development and completed rough grading of the first golf course. A period of public comments, feasibility studies, staff analysis, and board discussion led to a framework for the Restoration Project. The need and cost for raw water to support the Restoration Project were studied by experts and reported to Helix. The plan centered on partnering with Endangered Habitats Conservancy "to plan, design, construct, and implement the River Restoration Project" as part of selling the property with the Restoration Project "attached." "Helix would receive just compensation for the land and mineral assets." "El Capitan would relinquish its leaseholder rights for just compensation to allow the River Restoration Project to proceed." During the execution of the framework, "El Capitan will continue to hold the leaseholder rights and be responsible for all security and maintenance of the property as well as pay all rents to Helix." The sale could be to either a public entity or a private buyer if no public entity wanted the property.
Among the Helix's manager's conclusions were these: (1) "The creation of a self-sustained 500-acre River Restoration Project would be a legacy of statewide significance;" (2) "Helix and its ratepayers would be justly compensated for Helix's land and mineral asset and be released from the responsibility to implement this project and any associated long-term liabilities;" (3) "The existing land is severely impacted... and would be restored to more closely resemble and perform as natural habitat. The restored vegetation would be a great community and regional asset;" (4) "In addition, the infrastructure for a new recycled water project would be constructed at the outset. When recycled water becomes available to the valley, the use of raw water would be eliminated and replaced with recycled water;" and (5) "While this project may take years to fully implement, staff finds this project is superior both financially and environmentally to Helix than the current Golf Course Project."
Helix approved the restated lease with the specific understanding that it would operate under the framework for the new Restoration Project.
To implement the Restoration Project, in August 2007 El Capitan and Helix entered into an entitlement and management agreement (EMA) for the El Monte Valley River Restoration Project. The EMA recited the leasing history between the parties, including amendments to the restated lease. The parties acknowledged that all deadlines under the restated lease had been suspended during investigation of the feasibility of the Restoration Project and negotiation of the EMA. It recited that Helix would offer the property for sale or lease to public entities and if no transaction occurred, Helix "shall proceed to offer the Property for sale or lease to the public...." Among the essential agreements, El Capitan became entitled, when certain conditions occurred, to reimbursement of expenses in developing the golf courses that benefitted the ultimate Restoration Project. El Capitan took responsibility to obtain land use entitlements for the Restoration Project, with both prior and future expenses to be reimbursed. The restated lease was slated to terminate on sale of the Property.
C. Helix Allegedly Withdraws Cooperation
El Capitan began processing environmental review with the County of San Diego. Initially, Helix deemed itself inappropriate to act as lead agency under the California Environmental Quality Act (CEQA). The availability of water in times of stress remained a county concern. At meetings with county staff, Helix confirmed that it would continue to guarantee Restoration Project water. Project planning included a pipeline to transport raw water to the project. As of the end of 2007, the County of San Diego completed "scoping" (identifying the elements and sequence) the CEQA environmental review process. The scoping memorandum projected the final Restoration Project decision for May 7, 2009.
El Capitan identified two neighboring parcels of property that it could acquire and make part of the Restoration Project, resulting in additional income.
Around early 2008 Helix discovered that using the property as part of a "recharge basin, " a ground facility into which treated sewage could be discharged, for later recovery and use as municipal water (sometimes referred to as "toilet to tap"), would be to its advantage in light of statewide changes in water availability and related issues. Helix's general manager decided to combine recharge development with the Restoration Project, with Helix allegedly to take over as lead agency for a combined environmental impact report on both. The combined entitlement process would take until 2013.
In June 2008 Helix asserted that its agreement to provide raw water set forth in its August 24, 1998 letter applied only to the golf course and not to the Restoration Project. According to El Capitan, Helix refused to proceed with a Restoration Project that required any supplemental imported water. Development of golf courses under the restated lease standing alone would preclude use of the El Monte basin as a recharge basin.
On September 18, 2008, Helix officially assumed responsibility as lead CEQA agency for environmental review of a single project combining the Restoration Project with groundwater recharge.
El Capitan asserts that it repeatedly asked Helix to sell the property as provided in the EMA, but Helix refused to do so. According to El Capitan, Helix's position about the sale was that all environmental entitlements for the combined projects had to be in place before it had any obligation to sell the property.
On December 24, 2008, Helix gave notice of termination of the restated lease, asserting that El Capitan failed to maintain insurance. El Capitan disputes the fact that it failed to maintain insurance or was otherwise in default.
D. The Instant Action
In December 2008 El Capitan sued Helix. El Capitan amended the complaint twice and the second amended complaint is the operative pleading before us. The complaint sets forth causes of action for (1) breach of the restated lease; (2) breach of the EMA; (3) interference with prospective economic advantage; (4) inverse condemnation; and (5) nuisance.
The first cause of action alleged that Helix breached paragraphs 21.17 and 21.18 of the restated lease. As stated above, paragraph 21.17 provided that both parties "agree to cooperate fully, to work in good faith, and to mutually assist each other in the performance of this Lease." Paragraph 21.18 provided that Helix "shall (i) assist [El Capitan] in processing and securing any permits, (ii) review, process, and approve plans, and (iii) inspect the property, as necessary.... [Helix] staff shall present testimony in favor of the project at hearings on the project." El Capitan alleged that Helix breached these terms when it decided to use the El Monte basin as a wastewater recharge basin, recognized that any development under the restated lease would preclude use as a recharge basin, and embarked on a program of obstructing El Capitan's performance under the restated lease. Helix also allegedly breached paragraphs 21.17 and 21.18 when it "withdrew its support for the use of raw water on the project." El Capitan alleged that Helix's actions in combining the projects and dewatering the Restoration Project prevented performance under the restated lease to develop the Restoration Project and sell the property.
The second cause of action for breach of the EMA alleges that Helix owes El Capitan $2,969,926 for reimbursable expenses; $210,200 for additional reimbursable expenses; and $4,857,734 that allegedly became due on termination of the Restated Lease.
The third cause of action for interference with prospective economic advantage asserted that El Capitan had an agreement with the Endangered Habitats League for it to buy out El Capitan's lease with Helix for $30 million. El Capitan stated that instead of cooperating in this sale under paragraphs 21.17 and 21.18 of the restated lease, Helix caused the sale to fall through. El Capitan further alleged that it had negotiated understandings with two parties (the Hansens and the Lews) to buy their land to incorporate into the restoration project. El Capitan alleged that Helix interfered with those potential transactions by rescinding its water guarantee.
In the fourth cause of action for inverse condemnation, Helix alleged that by its actions in rescinding the water guarantee and combining the projects, Helix had deprived the property of all effective uses and financially prevented El Capitan from exercising any of its property rights.
In the fifth cause of action for nuisance, El Capitan alleged that by breaching the restated lease and inversely condemning the property, Helix created a private nuisance because it deprived El Capitan of the use and enjoyment of the property.
E. Anti-SLAPP Motion To Strike
In November 2009 Helix filed a motion to strike the second amended complaint as a SLAPP action. The motion to strike sought dismissal of the entire action on the ground that "[u]nderlying all of the cause of actions in the [second amended complaint] is Helix's purported 'interference' or 'hijacking' of the entitlement and permitting process for both the Golf Course and the River Restoration Projects, allegedly dooming both to failure." According to Helix, its participation in any permitting or entitlement process constituted constitutionally protected speech and petitioning activities.
El Capitan opposed the anti-SLAPP motion. El Capitan alleged the case did not involve a matter of public interest. El Capitan contended that the property was rural in nature and has never been developed or put to anything other than general agricultural use. Additionally, El Capitan argued "the lawsuit concerns actions taken as part of the EIR process rather than statements made as part of official proceedings." El Capitan contended that "Helix does not have any constitutional right to refuse to provide water to this project or to disallow the independent entitling of the restoration project." (Italics & boldface omitted.)
El Capitan alleged that Helix breached the golf course lease by "interfering with El Capitan's ability to satisfy its entitlements, to wit, changing the mitigation land requirement to place a far more onerous burden of El Capitan than had been agreed." El Capitan contended that Helix breached the EMA by "rescinding the water guarantee, joining the restoration project with the recharge project, and refusing to place the property up for sale so as to facilitate reimbursements to El Capitan." El Capitan alleged Helix "[p]revented El Capitan from merging three neighboring properties into its SEIR [(Subsequent Environmental Impact Report)] for inclusion in the grading process and sand sales and for later sale as mitigation land." El Capitan alleged Helix "[e]ffectively terminated El Capitan's leasehold decades too soon by preventing any economically viable use of the land." El Capitan alleged Helix "[c]reated a nuisance insofar as Helix's conduct has repeatedly required El Capitan to expend enormous effort to satisfy Helix's changing demands only to find the goalposts moved every time the stated demand is satisfied."
The court denied the anti-SLAPP motion. The court first concluded that Helix had not made the required showing that the second amended complaint arose out of activity related to a matter of "public interest" under section 426.16, subdivision (e)(4). The court found the Restoration Project did not rise to that level because it consisted of a noncontroversial conversion of highly impacted land into park land. As the court stated, "There are no concerns with increased traffic, freeway off ramps, closed streets, etc. Though the creation of new parkland would garner some public interest, this more generalized interest does not comport with the definition of 'public interest' set forth in [Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790 (Wang)]."
The court next concluded Helix had not shown it was engaged in protected petitioning activity under section 426.16, subdivision (e)(2) because the gravamen of El Capitan's action was not any petitioning activity, but rather it was the alleged acts of Helix in forcing El Capitan to abandon the restated lease, including mixing the projects and dewatering the Restoration Project: "As alleged, the gravamen of the case involves Helix's desire to force [El Capitan] to abandon the leased property through obstructionist policies designed to increase the cost of developing the property. As alleged, defendant Helix took various activities in order to achieve this: the failure to adjust rent schedules; failure to assist in clean-up of a pre-existing dump site; interference with a plan to sell sand mined from the river bed; and disruption of [El Capitan's] relationships with adjoining property owners. As alleged, Helix also sought to undermine plaintiff's position by 'intervening with the [public] agencies' from which it was attempting to obtain permits and entitlements. [Citation.] In essence, Helix attempted to negotiate a[n] environmental mitigation plan with the public agencies by which [El Capitan] was forced to purchase offsite land in mitigation. This would have increased [El Capitan's] overall costs making it impossible for [it] to develop the land. [Helix's] advocacy with these public agencies constitutes protected petitioning activity. However, the gravamen of the claim is not this petitioning activity, but instead [Helix's] business plan to disrupt [El Capitan's] use of the property. This public agency advocacy is simply evidence of the overall plan to disrupt the lease agreement...."
The court further found: "[A] fair reading of the allegations about the acts underlying [El Capitan's] causes of action leads to a conclusion that [El Capitan] is relying on acts that Helix carried out in furtherance of its economic interests. The requests to governmental authorities regarding [El Capitan's] pending permits and entitlements were made only in conjunction with the principal business transaction. The overall thrust of the complaint challenges the manner in which the parties privately dealt with one another and, and does not principally challenge the collateral activity of challenging governmental approvals."
The court also found that because Helix did not satisfy the first prong of anti-SLAPP analysis, "the court does not reach the merits of plaintiff's causes of action."
DISCUSSION
I. APPLICABLE LEGAL PRINCIPLES
Section 425.16, subdivision (b)(1) 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 or 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." (Italics added.) Under this statute, an " 'act in furtherance of a person's right of petition or free speech.... 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, ... (4) or 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).)
In an anti-SLAPP motion, the moving defendant is first required to make a prima facie showing the plaintiff's action is subject to section 425.16 by showing the defendant's challenged acts were taken in furtherance of constitutional rights of petition or free speech as defined by the statute. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) If a defendant satisfies the first portion of this test, the trial court then addresses whether it is reasonably probable the plaintiff will prevail on the merits at trial. (§ 425.16, subd. (b)(1).) However, a court need not reach this second prong of the analysis if the "arising from protected conduct" requirement is not met. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.)
Even where a " 'cause of action may be "triggered by" or associated with a protected act, ... it does not necessarily mean the cause of action arises from that act.' " (Freeman, supra, 154 Cal.App.4th at p. 730.) The principal thrust or gravamen of the plaintiff's cause of action is considered in initially determining whether the anti-SLAPP statute applies. (Martinez v. Metabolife Intl., Inc. (2003) 113 Cal.App.4th 181, 188 (Martinez).)
The issue is whether the arguably protected conduct (communications with public officials) substantially gave rise to the injuries that El Capitan has alleged or if any protected conduct was only "incidental" or "collateral" to the actually injurious acts (in the private contractual arrangements alleged in the second amended complaint). (Martinez, supra, 113 Cal.App.4th at p. 188.)
In Navellier v. Sletton, supra, 29 Cal.4th 82, the California Supreme Court stated "nothing in the anti-SLAPP statute categorically excludes any particular type of action from its operation. [Citation.] Conduct alleged to constitute a breach of contract may also come within constitutionally protected speech or petitioning. [Citation.] The focus of the statute is not the form of plaintiff's cause of action, but the defendant's activity that gives rise to the asserted liability." (Midland Pacific Building Corp. v. King (2007) 157 Cal.App.4th 264, 272 (Midland).)
In reviewing an anti-SLAPP order, we do not address the relative merits of the parties' claims and defenses, but instead determine only whether the challenged order correctly analyzed the record provided. (Freeman, supra, 154 Cal.App.4th at pp. 732-733.) "[I]t is not our task to resolve factual disputes or make credibility determinations on [a] section 425.16 motion; we accept plaintiffs' evidence as true for purposes of our analysis." (Freeman, supra, at p. 733.)
We review de novo the trial court's ruling on the motion to strike. (Martinez, supra, 113 Cal.App.4th at p. 186; Freeman, supra, 154 Cal.App.4th at p. 727.)
II. ANALYSIS
A. Matter of Public Interest
In Tuchscher Development Enterprises, Inc. v. San Diego Unified Port District (2003) 106 Cal.App.4th 1219, 1233, this court held: " 'The definition of "public interest" within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.' " (See also, e.g., Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1246 [widespread public concern or controversy].) In Tuchscher, supra, 106 Cal.App.4th at pages 1233-1234, we concluded the proposed commercial and residential development of substantial waterfront property, which had potential environmental impacts, was a matter of public interest. Similarly, in Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15, the Court of Appeal held the development of a discount mall, "with potential environment effects such as increased traffic and impaction on natural drainage" was a matter of public interest.
"[T]he precise boundaries of a public issue have not been defined. Nevertheless, in each case where it was determined that a public issue existed, 'the subject statements either concerned a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest.' " (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 736-737.)
The contracts (the restated lease and EMA) for the Restoration Project that El Capitan asserts Helix breached are arguably matters of public interest. The Restoration Project involved restoration of approximately 500 acres of land and turning it into parkland. It also, according to El Capitan, involved extracting approximately 10 million tons of sand, and an alleged guarantee of water for that sand mining. Moreover, Helix's decision to combine a recharge project with the restoration, sometimes referred to as "toilet to tap, " is, as El Capitan admitted in its opposition to the motion to strike, controversial and a matter of public interest: "[T]he controversial nature of the toilet to tap recharge basin project is inherently problematic in and of itself. The public has historically been opposed to toilet to tap projects and there is a risk that the project will never be approved or that it will be tied up in legal challenges for a lengthy time...."
However, assuming El Capitan's claims involve a matter of public interest, we conclude the court did not err in denying Helix's motion to strike as El Capitan's action does not "arise from" Helix's "conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech" as required by section 425.16, subdivision (e)(4).
Helix appears to assert that under subdivision (3)(4) of section 425.16, it is enough to show its conduct was a matter of public interest. However, its plain language states that it still must also be based on conduct in furtherance of its protected right of petition or free speech.
B. Protected Free Speech or Petitioning Activity
In Wang, supra, 153 Cal.App.4th 790 this court addressed breach of contract and fraud allegations in a land development context for purposes of the anti-SLAPP analysis. The Wang plaintiffs sold a portion of their land to defendant Wal-Mart, but contrary to the plaintiffs' understanding of the deal, the defendant did not relocate an access road that plaintiffs needed to retain, but instead obtained a city resolution that vacated the road and replaced it with emergency access and an alley. Plaintiffs sued Wal-Mart, which filed an anti-SLAPP motion on the grounds that the allegations in the complaint arose from protected petitioning activity (seeking and obtaining development permits from the city). This court reversed the trial court's determination that the complaint arose from protected activity, reasoning that anti-SLAPP protections do not apply to that scenario; the protected activity was merely incidental or collateral to the unprotected activity alleged in the complaint. (Id. at p. 802.) The "overall thrust" of the complaint challenged the manner in which Wal-Mart dealt with the plaintiffs, and the pursuit of governmental permits and approvals was collateral to those private dealings. (Id. at p. 809.)
In Midland, supra, 157 Cal.App.4th at page 273, the Court of Appeal commented on the holding in Wang, stating: "Indeed, modern real estate development almost always requires governmental permits. The anti-SLAPP statute will not protect a developer from a complaint for breach of contract simply because the developer sought governmental permits for the activity that constitutes the breach. The purpose of the contract in Wang was to allow Wal-Mart to develop its property. Governmental approval was simply collateral to that purpose."
Where a pleading has based its causes of action upon the defendant's business-related activities, such activities, even if related to a publicly administered proceeding, do not necessarily amount to protected "petitioning activity." "That a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) It still must be determined whether a defendant's alleged acts that underlie a particular cause of action were, in and of themselves, acts carried out "in furtherance of the right of petition or free speech." (Ibid.; Wang, supra, 153 Cal.App.4th at p. 805.)
Thus, where only a "purely business type event or transaction" forms the basis of the claim against the defendant, there is no anti-SLAPP protection because " ' "[t]he statements or writings in question must occur in connection with 'an issue under consideration or review' in the proceeding." ' " (Wang, supra, 153 Cal.App.4th at p. 806, quoting Blackburn v. Brady (2004) 116 Cal.App.4th 670, 677.) The question should be whether the plaintiff is seeking relief from the defendant for its protected communicative acts. (Wang, supra, at p. 806.)
Here, as the court found, the gravamen of El Capitan's action was not any protected petitioning activity on the part of Helix, but rather it was the alleged acts of Helix in forcing El Capitan to abandon the restated lease, including combining the projects and dewatering the Restoration Project. El Capitan alleges Helix breached the lease when it "withdrew its support for the use of raw water on the project." According to El Capitan using raw water for the restoration project was essential to environmental review. Moreover, Helix's decision to combine the Restoration Project with its wastewater recharge basin would delay the project by four years, making it financially unfeasible. The complaint also alleged that Helix interfered with El Capitan's contractual or potential contractual relationships with third parties.
These alleged actions by Helix arose from its private contractual relationship with El Capitan, not any protected petitioning activity. Helix's focus on the environmental review process and the permits necessary for the Restoration Project do not change this result. The "overall thrust" of the complaint challenged the manner in which Helix dealt with the El Capitan, and the pursuit of governmental permits and approvals was collateral to those private dealings. (Wang, supra, 153 Cal.App.4th at p. 809.) As the Court of Appeal noted in Midland, supra, 157 Cal.App.4that page 273, "modern real estate development almost always requires governmental permits. The anti-SLAPP statute will not protect a [defendant] from a complaint for breach of contract simply because the [defendant] sought governmental permits for the activity that constitutes the breach."
When we examine the allegations of the second amended complaint as a whole, we do not find that the petitioning activity is the principal or most substantial aspect of the claims, but instead it is incidental or collateral to the substantive breaches of duty that are claimed. Helix's communications and other conduct involving public officials were made only in conjunction with the principal business transaction. The overall thrust of the complaint challenges the manner in which the parties privately dealt with one another, on both contractual and tort theories, and does not principally challenge the collateral activities of pursuing governmental approvals. (See City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) As was the case in Wang, the parties and their representatives "engaged in business dealings or transactions, in which their contractual dealings... form the gravamen of the principal allegations." (Wang, supra, 153 Cal.App.4th at p. 808.)
In support of its position the gravamen of the complaint was its protected petitioning activities, Helix asserts that as the lead agency for the EIR it was statutorily required to consult with the responsible agencies, did not need El Capitan's approval to do so, and before any agencies could make a decision on a revised mitigation plan, El Capitan "abandoned" that plan. Helix also contends that it did not refuse to adjust rents, had no responsibility for clean up of the property, and the sale of sand was restricted under the golf course lease. Helix asserts that the second cause of action for breach of the EMA is not valid as (1) Helix never gave El Capitan a water guarantee for sand mining; (2) that issue was to be determined through the environmental review process; (3) El Capitan was responsible for obtaining all necessary permits; and (4) Helix's activities constituted "legitimate, independent, statutorily required decisions to be made by public agencies under CEQA and do not require the applicant's consent." (Fn. omitted.)
However, these allegations merely constitute Helix's alleged defenses to El Capitan's claims. That evidence supports the second prong of the test under section 425.16, i.e., whether El Capitan could show a probability of success at trial. (Ludwig v. Superior Court, supra, 37 Cal.App.4th at p. 15.)That prong is only relevant if Helix can satisfy the first prong: whether the case arose out of Helix's protected petitioning activity. Because we are concluding Helix cannot satisfy the first prong, we need not address the merits of El Capitan's claims. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67; Navellier v. Sletton, supra, 29 Cal.4th at pp. 88-89.) Further, in analyzing the first prong "it is not our task to resolve factual disputes or make credibility determinations...; we accept plaintiffs' evidence as true for purposes of our analysis." (Freeman, supra, 154 Cal.App.4th at p. 733.)
For all the foregoing reasons we conclude the court did not err in denying Helix's anti-SLAPP motion to strike.
DISPOSITION
The order denying Helix's motion to strike is affirmed. El Capitan shall recover its costs on appeal.
WE CONCUR: BENKE, Acting P. J., McDONALD, J.