Newport Harbor Offices & Marina, LLC v. Evangelism, 232 Cal. Rptr. 3d 540

Background

NHOM (sublessee) sued Cerullo and Plaza del Sol (sublessor and related entities) asserting declaratory relief and breach of contract claims arising from a 2004 sublease, related notes/deeds of trust, and subsequent notices and an unlawful detainer (UD) action.
After earlier appeals (including Copenbarger), NHOM filed a third amended complaint adding allegations that defendants issued multiple notices (30‑day letters, three‑day notices, an August 2011 letter, a March 2012 notice) and filed/refused to dismiss a UD action, and that these actions breached the Assignment for Collection and the Sublease.
Defendants moved under California's anti‑SLAPP statute (Code Civ. Proc. § 425.16) to strike the first three causes of action in whole or specific paragraphs that they argued arose from protected petitioning/speech (notably the UD action and pre‑litigation notices).
The trial court denied the motion; defendants appealed. The Court of Appeal applied the California Supreme Court's Baral decision to determine which specific allegations (if any) arose from protected activity and whether NHOM showed a probability of prevailing on those claims.
The court concluded many pleaded paragraphs did constitute claims based on protected activity (notably ¶¶ 87(F)–(J), 97–117, and 120) but NHOM failed at the second anti‑SLAPP step to present admissible evidence showing a probability of success, so those paragraphs/claims were ordered stricken. The denial was otherwise affirmed as to remaining allegations and defendant Artz.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Copenbarger controls as law of the case	Copenbarger governs and requires denial of anti‑SLAPP motion	Third amended complaint materially differs and Baral intervenes; Copenbarger not binding	Copenbarger not controlling because complaint was materially amended; Baral governs anti‑SLAPP analysis
Whether specific allegations arise from protected petitioning/speech	Many challenged allegations are contextual, not the basis for claims	Notices and UD filing/maintenance are protected; anti‑SLAPP may target specific allegations per Baral	Under Baral, several specific paragraphs (¶¶87(F)–(J), 97–117, 120) do arise from protected activity and support claims subject to anti‑SLAPP scrutiny
Whether plaintiff showed probability of prevailing on claims based on protected activity	NHOM relied on counsel’s declaration and attached exhibits to establish prima facie proof	Defendants argued the evidence is unauthenticated and insufficient under Baral/Taus	NHOM failed the second‑step burden—its attorney declaration did not authenticate documents or present admissible evidence tying elements together—so those claims were stricken
Whether defendants are entitled to attorney fees for partial anti‑SLAPP success	NHOM implicitly argued no clear prevailing party or fee award	Defendants sought fees as prevailing parties in part	Court remanded to trial court to consider fee applications because both sides prevailed in part (no fee decision made on appeal)

Key Cases Cited

Baral v. Schnitt, 1 Cal.5th 376 (Sup. Ct.) (anti‑SLAPP may target specific allegations/claims within a count; two‑step analysis)
Copenbarger v. Morris Cerullo World Evangelism, 215 Cal.App.4th 1237 (Cal. Ct. App.) (prior appellate decision describing when UD‑related acts are not the basis of a complaint)
Taus v. Loftus, 40 Cal.4th 683 (Sup. Ct.) (plaintiff must show probability of prevailing; summary‑judgment‑like second step)
Park v. Board of Trustees of California State University, 2 Cal.5th 1057 (Sup. Ct.) (claim arises from protected activity only if defendant’s act underlying the cause of action was petitioning/speech)
Silberg v. Anderson, 50 Cal.3d 205 (Sup. Ct.) (litigation privilege scope and application)
Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP, 18 Cal.App.5th 95 (Cal. Ct. App.) (de novo review of anti‑SLAPP; procedural guidance on analysis)