`
`Charles S. Bronitsky/Bar No. 124332
`Law Office of Charles S. Bronitsky
`533 Airport Blvd., Suite 326
`Burlingame, CA 94010
`Tel: (650) 918-5760
`Fax: (650) 649-2316
`
`Attorneys for Plaintiff
`SANDRA P. McIVER,
`TRUSTEE OF THE
`EDITH R. STERN TRUST
`
`
`1/5/2021
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`
`
`
`COUNTY OF SAN MATEO
`
`UNLIMITED JURISDICTION
`
`
`
`Plaintiff,
`
`
` Case No.: 20-CIV-03486
`SANDRA P. McIVER, TRUSTEE OF THE
`
`EDITH R. STERN TRUST dated July 6,
`OPPOSITION TO SPECIAL MOTION
`1953 f/b/a/Sandra P. McIver,
`TO STRIKE
`
`
`Date: January 19, 2021
`
`Time: 2:00 p.m.
`
`Dept.: 4
`v.
`
`
`TEJINDER SINGH, an individual;
`TRIPATINDER S. CHOWDRY, an
`individual; TEG PARTNERS, LLC, a
`Delaware limited liability company; and DOES
`1-25,
`
`Defendants.
`
`
`_______________________________
`
`AND RELATED CROSS COMPLAINT
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`
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`Opposition to Special Motion to Strike
`McIver v. Singh et al.
`Case No. 20-CIV-03486
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`650-918-5760
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`Law Office of Charles S. Bronitsky
`CHARLES S. BRONITSKY
`
`533 Airport Blvd., Ste. 326
`
`Burlingame, CA 94010
`
`

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`
`
`TABLE OF CONTENTS
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`TABLE OF CONTENTS ……………………………………………………………………… i
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`TABLE OF AUTHORITIES ………………………………………………………………….. ii
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`INTRODUCTION ................................................................................................................ 1
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`I.
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`II. STATEMENT OF FACTS ................................................................................................... 3
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`III.
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`POINTS AND AUTHORITIES ....................................................................................... 6
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`A. CCP § 425.16 DOES NOT APPLY IN THIS CASE ....................................................... 6
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`B. PLAINTIFF CAN ESTABLISH PROBABILITY OF SUCCESS ................................ 11
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`1. Defendants’ Statements Were False and Not Constitutionally Protected .................. 13
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`2. Defendants’ Statements Are Not Privileged ............................................................... 15
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`3. Plaintiff’s Claims Have More Than a Probability of Success on the Merits .............. 17
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`4. Defendants’ Conduct Was Not Lawful and Justified ................................................. 18
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`C. DEFENDANTS’ MOTION IS FRIVOLOUS ................................................................ 19
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`IV.
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`CONCLUSION .............................................................................................................. 20
`
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`Opposition to Special Motion to Strike
`McIver v. Singh et al.
`Case No. 20-CIV-03486
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`650-918-5760
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`Law Office of Charles S. Bronitsky
`CHARLES S. BRONITSKY
`
`533 Airport Blvd., Ste. 326
`
`Burlingame, CA 94010
`
`

`

`
`
`TABLE OF AUTHORITIES
`
`Cases
`Abrams & Fox, Inc. v. Briney (1974) 39 Cal.App.3d 604 ......................................................... 18
`Abrams & Fox, Inc. v. Briney (1974) 39 Cal.App.3d 604, ........................................................ 12
`Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291 ............................................................... 10
`Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265 ............................................................... 20
`Baral v. Schnitt (2016) 1 Cal. 5th 376 .......................................................................................... 1
`Begier v. Storn (1996) 46 Cal.App.4th 877 ................................................................................ 15
`Brewer v. Second Baptist Church of Los Angeles (1948) 32 Cal 2d 791 .................................. 17
`Briggs v. ECHO (1999) 19 Cal.4th 1106 ..................................................................................... 9
`City of Costa Mesa v. D’Alession Investments, LLC (2013) 214 Cal.App. 4th 358 ................. 16
`City of Cotati v. Cashman (2002) 29 Cal.4th 69 .......................................................................... 8
`ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993 ..................................................... 9
`Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395 ..................................... 12
`De Mott v. Amalgamated Meat Cutters and Butcher Workmen of North America (1958) 157
`Cal.App.2d. 13 ........................................................................................................................ 17
`Deaile v. General Telephone Co of California (1974) 40 Cal.App.3d 841 ................................ 16
`Herron v. State Farm Mut. Ins. Co. (1961) 56 Cal.2d 202 ......................................................... 18
`Imperial Ice Co. v. Rossier (1941) 18 Cal.2d. 33 ....................................................................... 19
`L.A. Taxi Cooperative, Inc. v. Independent Taxi Owners of Los Angeles (2015) 239 Cal.App.4th
`918 .......................................................................................................................................... 19
`Lefebvre v. Lefebrve (2011) 199 Cal.App.4th 696 .................................................................... 10
`Loomis v. Superior Court (1987) 195 Cal.App.3d 1026 ............................................................ 15
`Lowell v. Mother's Cake & Cookie Co. (1978) 79 Cal.App.3d 13 ............................................ 19
`Ludwig v. Superior Court (1995) 37 Cal.App. 4th 8 .................................................................. 10
`Moore v. Shaw (2004) 116 Cal.App.4th 182 ......................................................................... 1, 19
`Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118 ................................ 15
`Paradise Hills Association v. Procel (1991) 235 Cal.App.3d 1528 ............................................ 14
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`Opposition to Special Motion to Strike
`McIver v. Singh et al.
`Case No. 20-CIV-03486
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`650-918-5760
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`Law Office of Charles S. Bronitsky
`CHARLES S. BRONITSKY
`
`533 Airport Blvd., Ste. 326
`
`Burlingame, CA 94010
`
`

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`Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 .................... 2, 7
`Rader v. Thrasher (1972) 22 Cal.App.3d 883 ............................................................................ 15
`Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505 .................. 11
`Ruiz v. Harbor View Community Ass'n (2005) 134 Cal. App. 4th 1456 .................................. 13
`Sharper Image Corp.v. Target Corp. (2006) 425 F.Supp.2d 1056 ............................................. 16
`Weinberg v. Feisel (2003) 110 Cal.App.4th 1122 ...................................................................... 10
`Weiss v. Marcus (1975) 51 Cal. App.3d 590 ............................................................................. 18
`Wilcox v. Superior Court (1994) 27 Cal.App.4th 809 ............................................................. 1, 6
`Workman v. Colichman (2019) 33 Cal.App.5th 1039 ........................................................... 1, 20
`
`Statutes
`CCP § 425.16 ............................................................................................................................ 1, 7
`Civil Code §47(c) ....................................................................................................................... 16
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`Opposition to Special Motion to Strike
`McIver v. Singh et al.
`Case No. 20-CIV-03486
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`650-918-5760
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`Law Office of Charles S. Bronitsky
`CHARLES S. BRONITSKY
`
`533 Airport Blvd., Ste. 326
`
`Burlingame, CA 94010
`
`

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`I.
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`INTRODUCTION
`Defendants’ Special Motion to Strike is frivolous! An Anti-SLAPP motion is frivolous
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`when it is “‘totally and completely without merit’ (§ 128.5, subd. (b)(2)), that is, ‘any
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`reasonable attorney would agree such motion is totally devoid of merit.’” Moore v. Shaw (2004)
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`116 Cal.App.4th 182, 199. Defendants’ motion is totally devoid of merit.
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`In order to bring an anti-SLAPP motion the defendant must show that the conduct
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`underlying the plaintiff's cause of action or portions of the cause of action that are asserted as
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`grounds for relief—arises from the defendant's constitutional rights of free speech or
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`petition. CCP § 425.16, subd. (b)(1).); Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. To argue that
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`free speech is at issue, a defendant must show that the speech was “in connection with a public
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`issue.’ (§ 425.16, subd. (b).)” Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 820.
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`Defendants do not even make this argument as there is a case directly on point that interference
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`with the sale of real property is a private and not a public issue subject to anti-SLAPP.
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`Workman v. Colichman (2019) 33 Cal.App.5th 1039, 1042.
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`Instead, Defendants claim that this action impinges on their right to petition. The
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`problem with that argument is that Defendants did not exercise the right to petition, they
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`communicated with third parties outside the scope of any pending matter and when Plaintiff
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`filed a motion to enforce a prior settlement, Defendants merely responded and claimed that
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`they had fully complied. Moreover, the allegations of the First Amended Complaint in this case
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`allege conduct by Defendants that begin months before Plaintiff’s motion was filed. Finally,
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`everything Defendants are alleged to have done, is wholly unrelated to the enforcement of the
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`settlement agreement in the earlier case.
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`In order to show that they have entitlement to relief under the Anti-SLAPP provisions
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`for exercising the right to petition, “the defendant’s act underlying the plaintiff’s cause of
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`action must itself have been an act in furtherance of the right of petition or free speech.” . . .
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`[T]he mere fact that an action was filed after protected activity took place does not mean
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`the action arose from that activity for the purposes of the anti-SLAPP statute. . . . Instead,
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`the focus is on determining what “the defendant’s activity [is] that gives rise to his or her
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`Opposition to Special Motion to Strike
`McIver v. Singh et al.
`Case No. 20-CIV-03486
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`650-918-5760
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`Law Office of Charles S. Bronitsky
`CHARLES S. BRONITSKY
`
`533 Airport Blvd., Ste. 326
`
`Burlingame, CA 94010
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`asserted liability—and whether that activity constitutes protected speech or petitioning.”
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`Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062. “[A] claim
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`may be struck only if the speech or petitioning activity itself is the wrong complained of,
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`and not just evidence of liability or a step leading to some different act for which liability is
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`asserted.” Id. at 1060. The acts of Defendants as alleged in this case occurred before any
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`motion was pending, continued after the motion was denied and are completely irrelevant to the
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`prior litigation as what is being complained of are statements made to third parties, potential
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`purchasers of Plaintiff’s property, not the right to petition.
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`The fact is that it is Defendants who are using their Special Motion to Strike and other
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`baseless litigation tactics to prevent Plaintiff from petitioning this Court for damages from
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`Defendants’ conduct. They have distorted the facts, omitted key facts and claimed the benefit
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`of laws that simply do not apply. Defendants’ motion is wholly without factual or legal merit
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`and they should be sanctioned for filing it and pursuing it.
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`As shown in the Declaration of Tad Sanders, Defendants have been harassing Plaintiff
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`since she bought 655 Miramar Drive, Half Moon Bay, California in late 2016. Plaintiff’s
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`property contains an express easement for ingress, egress and utilities across the vacant lot
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`owned by Defendant, Teg Partners. Shortly after buying the property she tried to have the ruts
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`and divots taken out of her driveway so that cars could safely make it up the hill to her house.
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`Defendants took the position that she had no right to do anything to the driveway, not even to
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`make it safer to drive on. In furtherance of this position, defendants drove metal and wooden
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`stakes into the driveway, illegally erected fences to make entry onto the driveway more difficult
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`and repeatedly attempted to stop Plaintiff from fixing the driveway. As those efforts proved
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`unsuccessful in stopping Plaintiff from fixing her driveway, Defendant put up nearly a dozen
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`surveillance cameras on their vacant lot including cameras that faced into Plaintiff’s property,
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`they put up signs and later posters that were visually very intimidating. They sued Plaintiff’s
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`daughter who owned property on the other side of the vacant lot. (RJN, Ex. 6). They harassed
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`the people who bought Plaintiff’s daughter’s property to the point that they had to obtain a
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`restraining order to stop Defendants from installing yet more cameras. (RJN, Ex. 7).
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`Opposition to Special Motion to Strike
`McIver v. Singh et al.
`Case No. 20-CIV-03486
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`650-918-5760
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`Law Office of Charles S. Bronitsky
`CHARLES S. BRONITSKY
`
`533 Airport Blvd., Ste. 326
`
`Burlingame, CA 94010
`
`

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`There was significant litigation involving the use of the easement, but ultimately that
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`litigation ended in a settlement agreement. The current claims begin with the end of the prior
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`litigation in a settlement agreement. What follows is the entire set of facts underlying Plaintiff’s
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`claims against Defendants in this action, along with citations to the evidence. As the evidence
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`shows, none of Defendants acts are an exercise of their right to petition.
`II.
`STATEMENT OF FACTS
`February, 2020: (1) Prior Litigation Settles / Order Entered (Paragraph 3 and Exhibit 1
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`to the Declaration of Defendant, Tripatinder Chowdhry filed in 17-CIV-00720 (Request for
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`Judicial Notice, Exhibit 1)). (2) Defendants remove cameras, signs and photos from the
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`easement in “compliance” with the settlement agreement / order but then unilaterally install
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`new cameras, signs and posters on their property and on property that they do not own which
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`cameras, signs and posters are all directed at the easement and at Plaintiff’s property,
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`(Paragraphs 10, 11, 12 and 13 to the Declaration of Defendant, Tripatinder Chowdhry and
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`Exhibits to Declaration of Charles S. Bronitsky filed in 17-CIV-00720 (Request for Judicial
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`Notice, Exhibits 1 and 2); Declaration of Charles S. Bronitsky, Exhibit 1.)). (3) Defendant Singh
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`emails San Mateo County Code Enforcement to attempt to have Plaintiff’s complaint about his
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`illegal erected fences which hamper access to Plaintiff’s easement dismissed by falsely stating
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`the terms of the settlement agreement; Declaration of Charles S. Bronitsky, Ex. 2. (4) Plaintiff’s
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`attorney writes an email in response to Defendant Singh’s email correcting the record on the
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`fences; Declaration of Charles S. Bronitsky, Ex. 3.
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`May , 2020: (1) Plaintiff’s real estate agent, Nate Serdy goes to Plaintiff’s property
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`and is engaged by Defendants questioning what would be disclosed to potential buyers of
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`Plaintiff’s property; Declaration of Nate Serdy, Ex. 17. (2) Defendant Singh sends an email to
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`Mr. Serdy with a list of links to documents that he believes should be disclosed to prospective
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`buyers of Plaintiff’s property and recommends that buyers obtain “a legal opinion as well.”;
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`Declaration of Nate Serdy, Ex. 17. (3) Nate Serdy asked Defendant Singh to remove the posters
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`and Defendant Singh refused; Declaration of Charles S. Bronitsky, Ex. 11.
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`May/June 2020: Numerous prospective buyers decide not to move forward with a
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`Opposition to Special Motion to Strike
`McIver v. Singh et al.
`Case No. 20-CIV-03486
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`650-918-5760
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`Law Office of Charles S. Bronitsky
`CHARLES S. BRONITSKY
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`533 Airport Blvd., Ste. 326
`
`Burlingame, CA 94010
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`

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`purchase of Plaintiff’s property due to the cameras, posters and threatened litigation from the
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`Singh email which Plaintiff then had to disclose; Declaration of Nate Serdy, Exs 7 through 13.
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`July, 2020: (1) Given the generally adverse response by prospective buyers to the
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`cameras, signs and photos, Plaintiff files a motion to enforce the settlement agreement in the
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`prior case to have the number of cameras reduced and the posters removed as provided for
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`therein; Request for Judicial Notice, Ex. 3. (2) Defendants email Mr. Serdy again demanding to
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`know why he was on Plaintiff’s driveway and accusing Tad Sanders, who works for Plaintiff and
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`who Defendants well know, of being a criminal
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`; Declaration of Nate Serdy, Ex. 6; in
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`Discovery Responses, Defendants produced short video excepts of Mr. Serdy and Mr.
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`Sanders on Plaintiff’s driveway. (3) Plaintiff enters into contract to sell her property to
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`Froilan Perez; Declaration of Sandra McIver, Ex. 1.
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`August, 2020: (1) Defendant Chowdhry approaches Frolian Perez on Plaintiff’s
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`driveway and threatens to sue him if he goes through with the purchase of Plaintiff’s property,
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`so in response Mr. Perez cancels the purchase contract; Declaration of Nate Serdy, Ex. 4;
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`Declaration of Sandra McIver, Ex. 2; Defendants were requested through their counsel to
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`preserve video of these encounters but no video of this communication was produced by
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`Defendants. (2) Two potential buyers attempt to visit Plaintiff’s property and are met by
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`Defendant Chowdhry who told them that they should not buy Plaintiff’s property because it
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`would be tied up in litigation for 20 years, that Plaintiff’s property did not have a driveway that
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`legally attached to the street so if they bought Plaintiff’s property they would have no way in or
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`out, that ambulances and garbage trucks could not service the property because of the retaining
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`wall, that the sewage system would have to be removed, that sewage, well water and electrical
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`service to Plaintiff’s property were not up to code and that the water supply could be poisoned;
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`Declaration of Nate Serdy, Ex. 2; Defendants were requested through their counsel to
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`preserve video of these encounters but no video of this communication was produced by
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`Defendants. (3) In response to Defendants having interfered with her contract with Mr. Perez
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`and having told numerous lies about the property to the two most recent potential purchasers,
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`Plaintiff filed this action for damages and to attempt to prevent further interference; Complaint
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`Opposition to Special Motion to Strike
`McIver v. Singh et al.
`Case No. 20-CIV-03486
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`650-918-5760
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`Law Office of Charles S. Bronitsky
`CHARLES S. BRONITSKY
`
`533 Airport Blvd., Ste. 326
`
`Burlingame, CA 94010
`
`

`

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`in this action.
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`September, 2020:
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`(1) Judge Greenberg denies WITHOUT PREJUDICE, Plaintiff’s
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`664.6 motion on procedural grounds (failure to attempt ADR prior to seeking relief) and does
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`not reach the issue of whether Defendants violated the settlement agreement or not; Request
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`for Judicial Notice, Ex. 4. (2) Defendants continued interference with Plaintiff’s efforts to sell
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`her property was brought to Defendants’ counsel’s attention. Defendants counsel was also
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`asked to preserve all video evidence. In response Defendants’ counsel responded “Received”;
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`Declaration of Charles S. Bronitsky, Ex. 4. (3) Defendants continue to interfere with Plaintiff’s
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`attempts to sell her property by sending texts to potential buyer Paul Blanton asking to know
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`what documents he has reviewed in connection with his purchase and asking him to contact
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`their attorney to discuss the matter; This is alleged in Defendants’ motion but the texts were
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`not produced.
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`October, 2020: Defendants, through their counsel, continue in their efforts to interfere
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`with Plaintiff’s attempts to sell her property by threatening further litigation if they do not agree
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`to stop contacting the County regarding the removal of the illegally erected fences, claiming the
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`issue just came to Defendants’ attention when in fact it was addressed back in February;
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`Declaration of Charles S. Bronitsky, Exhibit 5.
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`November, 2020: (1) Defendants file their Special Motion to Strike as part of their
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`effort to prevent Plaintiff from seeking redress against them for their interference with her
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`attempt to sell her property claiming they have fully complied with the settlement agreement in
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`response to Plaintiff’s 664.6 motion yet claiming here that their conduct in installing new
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`cameras, signs and posters after the prior case settled and actions interfering with Plaintiff’s real
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`estate agent and numerous prospective buyers is somehow related to the prior litigation. (2)
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`Defendants continue in their threat of further litigation in the event Plaintiff continues to
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`exercise her right to petition the County to have the illegal fences removed, when their counsel
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`sends an email stating: “I have demanded that your client and her agent both as well as you
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`withdraw your requests to the County, to the fire department , and to the Water department,
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`for withdrawal of the fences. You have refused to do so. I am proceeding to set up a mediation
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`Opposition to Special Motion to Strike
`McIver v. Singh et al.
`Case No. 20-CIV-03486
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`650-918-5760
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`Law Office of Charles S. Bronitsky
`CHARLES S. BRONITSKY
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`533 Airport Blvd., Ste. 326
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`Burlingame, CA 94010
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`with John Till as soon as possible. If not resolved in mediation my firm will file a CCP Sec.
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`664.6 motion. These arguments are wholly without merit”; Bronitsky Declaration, Ex. 6 and 7.
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`(3) Despite having filed their motion under CCP §425.16 which stays discovery, Defendants
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`attempt to subpoena third party witnesses; Declaration of Charles S. Bronitsky, Ex. 8. (4)
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`Plaintiff propounds limited discovery on Defendants by Agrement of the Parties; Declaration of
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`Charles S. Bronitsky, Ex. 9.
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`December, 2020: Defendants respond to Plaintiff’s discovery but produce no videos of
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`their known interaction with various potential buyers and produce 5,741 pages of documents
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`over 99% of which are not responsive and are unrelated to the facts of this case; Declaration of
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`Charles S. Bronitsky, Para. 14 and Ex. 10.
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`Plaintiff ultimately sells her home at a much lower price due to the interference by
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`Defendants; Declaration of Rebecca J. Frederick, Ex. 2
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`As discussed below, the facts of this case do not give rise to any protection of
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`Defendants under CCP 425.16, the Anti-SLAPP provisions as none of what they did relates to
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`their attempt to or right to petition or to any issue of public significance. Their distorted
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`attempts to twist the facts and the law to fit, are wholly without merit. This is a wholly frivolous
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`motion and Defendants should be sanctioned.
`III. POINTS AND AUTHORITIES
`A.
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`CCP § 425.16 DOES NOT APPLY IN THIS CASE
`It is beyond dispute that “the statute requires the defendant to make a prima facie
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`showing the plaintiff's suit arises ‘from any act of [defendant] in furtherance of [defendant's]
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`right of petition or free speech under the United States or California Constitution in connection
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`with a public issue.’ (§ 425.16, subd. (b).)” Wilcox v. Superior Court (1994) 27 Cal.App.4th 809,
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`820. In attempting to meet their burden, Defendants intentionally avoid mentioning most of
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`what they did to interfere with Plaintiff’s efforts to sell her property and instead act as if all that
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`is alleged in this case is “that the Defendants interfered with McIVER's contract to sell her
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`property by contacting her supposed buyers and claiming that the issues that were settled in the
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`McIVER First Lawsuit were not actually settled.” That is simply not true.
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`Opposition to Special Motion to Strike
`McIver v. Singh et al.
`Case No. 20-CIV-03486
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`650-918-5760
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`Law Office of Charles S. Bronitsky
`CHARLES S. BRONITSKY
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`533 Airport Blvd., Ste. 326
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`Burlingame, CA 94010
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`As outlined item by item above, the Complaint alleges, and the evidence shows that
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`Defendants began interfering with the sale back in February, just days after the prior case
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`settled. In fact, in opposing Plaintiff’s 664.6 motion in the prior case, Defendants admitted to
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`putting pipes into the easement (which they claimed they removed in July), they admitted to
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`removing the posters and signs from the easement and putting up new signs and posters and
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`they admitted to having cameras placed all around their property and on property not belonging
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`to them. (RJN, Exs. 1-2). Their own email correspondence shows Defendants contacting
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`Plaintiff’s real estate agent in May and making demands on what should be disclosed to
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`prospective buyers. Defendants harassed and questioned prospective buyers both directly and
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`through emails and texts. Defendants threatened to sue anyone who bought Plaintiff’s property,
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`including a buyer that was in contract to purchase the property. Defendants lied to prospective
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`buyers about the conditions of the property including access to the road, water lines, electricity,
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`and emergency services. Defendants made implied threats to poison the water supply. None of
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`that relates to their right to petition
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`Section 425.16(b) requires that Defendants show that the current lawsuit is one “arising
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`from” their alleged protected action. In that regard they have woefully failed. As stated
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`recently by the California Supreme Court: “As we explain, a claim is not subject to a motion
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`to strike simply because it contests an action or decision that was arrived at following
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`speech or petitioning activity, or that was thereafter communicated by means of speech or
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`petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity
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`itself is the wrong complained of, and not just evidence of liability or a step leading to
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`some different act for which liability is asserted.” Park v. Board of Trustees of California State
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`University (2017) 2 Cal.5th 1057, 1060. Defendants did not petition the court in the prior case,
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`Plaintiff did! Defendants did file opposition, but that filing is NOT the wrong complained of in
`this action. Thus, under Park, Defendants have failed to establish entitlement to relief.
`“A claim arises from protected activity when that activity underlies or forms the
`basis for the claim. . . . Critically, “the defendant’s act underlying the plaintiff’s cause of
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`action must itself have been an act in furtherance of the right of petition or free speech.” . .
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`Opposition to Special Motion to Strike
`McIver v. Singh et al.
`Case No. 20-CIV-03486
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`650-918-5760
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`Law Office of Charles S. Bronitsky
`CHARLES S. BRONITSKY
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`533 Airport Blvd., Ste. 326
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`Burlingame, CA 94010
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`. [T]he mere fact that an action was filed after protected activity took place does not mean the
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`action arose from that activity for the purposes of the anti-SLAPP statute. . . . Instead, the
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`focus is on determining what “the defendant’s activity [is] that gives rise to his or her asserted
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`liability—and whether that activity constitutes protected speech or petitioning.” “The only
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`means specified in section 425.16 by which a moving defendant can satisfy the [‘arising from’]
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`requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have
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`been injured falls within one of the four categories described in subdivision (e)....” Id. at 1062-
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`1063. Defendants clearly cannot meet this burden and their motion should therefore be denied.
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`If, for example, Defendants filed a lawsuit or a 664.6 motion to enforce the settlement in
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`the prior lawsuit and thereafter Plaintiff filed suit to attempt to stop Defendants from litigating
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`those issues, an Anti-SLAPP motion would be warranted. Nothing like that happened here.
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`Here, Defendants began their course of conduct days after the prior litigation settled and what it
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`all involved out of court conduct and out of court communication unrelated to any pending
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`matter. The fact that in the middle of their incessant harassment, Plaintiff filed her own 664.6
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`motion does not suddenly make this lawsuit the subject of an Anti-SLAPP claim. The Park case
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`and others discussed below, make that patently clear. Thus, Defendants’ motion should be
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`denied.
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`Remarkably, Defendants site the case of City of Cotati v. Cashman (2002) 29 Cal.4th 69.
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`The facts of City of Cotati were that the City had adopted a mobilehome park rent stabilization
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`program, were sued by owners of mobilehome parks in Federal Court and in response the City
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`sued the Owners in State Court. Id. at 72. In deciding that the City’s State Court action did not
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`arise from the filing of the Federal Action and thus it was not a proper subject for the owners’
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`anti-SLAPP motion, the California Supreme Court held that “the mere fact an action was
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`filed after protected activity took place does not mean it arose from that activity. The anti-
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`SLAPP statute cannot be read to mean that ‘any claim asserted in an action which
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`arguably was filed in retaliation for the exercise of speech or petition rights falls under
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`section 425.16, whether or not the claim is based on conduct in exercise of those rights.’”
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`Id. at 76-77. The California Supreme Court ultimately concluded that “the statutory phrase
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`Opposition to Special Motion to Strike
`McIver v. Singh et al.
`Case No. 20-CIV-03486
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`650-918-5760
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`Law Office of Charles S. Bronitsky
`CHARLES S. BRONITSKY
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`533 Airport Blvd., Ste. 326
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`Burlingame, CA 94010
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`“cause of action ... arising from” means simply that the defendant's act underlying the
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`plaintiff's cause of action must itself have been an act in furtherance of the right of petition.
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`None of Defendants’ conduct as alleged in the First Amended Complaint in this case
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`can even remotely be said to be in furtherance of their right to petition. Thus, Defendants have
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`failed to meet their burden under CCP § 425.16.
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`Defendants also cite ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993 for the
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`proposition that Section 425.16 applies to “A statement made in connection with an issue under
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`consideration or review by a . . . judicial body.” However, the Court in ComputerXpress made it
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`clear that not every “suit filed after the defendant's exercise of its petition or free speech
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`rights automatically comes within section 425.16. In each case, the conduct on which the
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`suit [is] based[ must have] occurred in connection with an official proceeding . . . or related
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`to a public issue …. Therefore, these decisions do not warrant a departure from the rule cited
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`ante, which requires that “the act underlying the plaintiff's cause” or “the act which forms
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`the basis for the plaintiff's cause of action” must itself have been an act in furtherance of
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`the right of petition or free speech.” Id. at 1003. The undeniable fact is that Defendants never
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`exercised their right to petition, it was Plaintiff who filed to enforce the prior settlement. What
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`Defendants did was to commit new, unrelated torts as the facts above enumerate. Thus, under
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`ComputerXpress Defendants have failed to meet their burden and the motion should be denied.
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`Defendants also rely on Briggs v. ECHO (1999) 19 Cal.4th 1106. That reliance is
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`misplaced. None of the elements present in Briggs are present in this case. In Briggs, ECHO
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`worked with two of the Plaintiffs’ tenants on a HUD investigation and on a small claims action
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`against Plaintiffs. All