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32592 Valle Road LLC v. J Star Capital Holdings

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE


December 23, 2010

32592 VALLE ROAD LLC, PLAINTIFF AND RESPONDENT,
v.
J STAR CAPITAL HOLDINGS, INC., DEFENDANT AND APPELLANT.

Appeal from an order of the Superior Court of Orange County, Charles Margines, Judge. Reversed and remanded. (Super. Ct. No. 30-2009-00126501)

The opinion of the court was delivered by: Aronson, J.

32592 Valle Road v. J. STAR Capital Holdings CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Defendant J STAR Capital Holdings, Inc., (J STAR Holdings) appeals from an order denying its special motion to strike under the anti-SLAPP statute, Code of Civil Procedure section 425.16 (all further statutory references are to the Code of Civil Procedure, unless otherwise noted).*fn1

Plaintiff 32592 Valle Road LLC, (Valle Road) sued J STAR Holdings, alleging it induced defendants J STAR Motors, Inc., (J STAR Motors) and Jared W. Merrell to breach their lease with Valle Road. Valle Road alleged J STAR Holdings caused the breach by copying Valle Road's lender on a letter requesting Valle Road stipulate to relief from the automatic stay in Valle Road's pending bankruptcy proceeding. The letter sought relief from the stay so J STAR Motors and Merrell could file a state court action terminating the lease.

Concluding J STAR Holdings lacked standing to seek relief from the automatic bankruptcy stay because it was not a party to the lease, the trial court ruled J STAR Holdings was not entitled to section 425.16's protection. We reverse and remand the matter for the trial court to enter a new order granting J STAR Holdings' motion, and to decide any motion for attorney fees and costs under section 425.16, subdivision (c).

I FACTS AND PROCEDURAL HISTORY

Valle Road owned commercial real property in San Juan Capistrano, California. Valle Road borrowed money from Zions First National Bank (Zions Bank) to purchase the property and Zions Bank held a first trust deed to secure the loan.

In December 2006, Valle Road leased the property to J STAR Motors and its president, Merrell, for a five-year term. J STAR Motors operated a car dealership on the property. Early in the lease, J STAR Motors and Merrell repeatedly complained that Valle Road had intentionally interfered with their use of the property. For example, J STAR Motors and Merrell accused Valle Road of blocking access to various portions of the property and erecting a for sale sign that misled its customers to believe J STAR Motors was going out of business.

Less than two years into the lease, Valle Road defaulted on the Zions Bank loan. Eight months later, Valle Road filed for bankruptcy to prevent Zions Bank from foreclosing on the property.

During the pendency of the bankruptcy, Michael Vivoli, J STAR Motors and Merrell's counsel, sent a letter to Valle Road's bankruptcy counsel complaining that Valle Road continued to interfere with J STAR Motors and Merrell's use of the property. Vivoli's letter concluded by requesting Valle Road stipulate to grant relief from the automatic bankruptcy stay so J STAR Motors and Merrell could file a state court action terminating the lease based on Valle Road's conduct. Vivoli sent a copy of his letter to Zions Bank's counsel because he believed Zions Bank could object to any motion for relief from the automatic stay.

Valle Road refused to stipulate to grant J STAR Motors and Merrell relief from the automatic stay. J STAR Motors and Merrell subsequently filed a motion seeking relief from the stay, which the bankruptcy court granted.

A few weeks after Vivoli's letter, and while the bankruptcy was still pending, J STAR Motors and Merrell abandoned the property and moved the business to an Anaheim Hills parcel they purchased in the name of J STAR Holdings. Zions Bank foreclosed on Valle Road's property shortly after J STAR Motors and Merrell stopped paying rent.

Valle Road sued J STAR Motors, Merrell, and J STAR Holdings, asserting three causes of action. The first cause of action alleged J STAR Motors and Merrell breached the lease by abandoning the property and refusing to pay further rent. The second cause of action alleged J STAR Motors and Merrell intentionally interfered with the relationship between Valle Road and Zions Bank by copying Zions Bank's counsel on the letter requesting relief from the automatic stay. The third cause of action alleged J STAR Holdings induced J STAR Motors and Merrell to breach their lease with Valle Road by copying Zions Bank's counsel on the same letter. The first amended complaint did not explain how copying the letter to Zions Bank's counsel caused J STAR Motors and Merrell to breach the lease.

J STAR Motors, Merrell, and J STAR Holdings filed a special motion to strike the second and third causes of action. The motion asserted the letter constituted protected petitioning activity because it explained the basis for a proposed state court lawsuit and requested a stipulation for relief from the automatic bankruptcy stay so J STAR Motors and Merrell could seek relief in state court. The motion also asserted Valle Road had no evidence to support its inadequately pled second and third causes of action.

In opposition, Valle Road changed the basis for liability on the third cause of action. It now asserted, in a proposed, redrafted complaint, J STAR Holdings' conduct in finding a new location for J STAR Motors' facilities induced J STAR Motors and Merrell to breach their lease. The opposition did not mention, and made no attempt to defend, the letter copied to Zions Bank's counsel as the basis for the third cause of action against J STAR Holdings.

The trial court's minute order granted the motion on the second cause of action, but denied it on the third cause of action, explaining: "The motion is DENIED as to the 3rd C/A (Intentional interference with business relations). While the same conduct by defendants alleged in the 2nd C/A forms the basis for this claim, the court reaches a different result. J Star Holdings, against whom the 3rd C/A is directed, was not a party to the lease agreement. Thus, it had no standing to seek relief in bankruptcy court and consequently cannot maintain that the letter fell within the scope of [section] 425.16, [subdivision] (e)(2). Moving parties have failed to meet their initial burden, and the court need not consider whether plaintiff has demonstrated a probability of prevailing at trial."

J STAR Holdings appealed the trial court's denial of the special motion to strike on the third cause of action alleging interference with business relations. Valle Road did not appeal the trial court's decision granting the motion on the second cause of action.

II DISCUSSION

A. Governing Anti-SLAPP 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 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."

"To prevail on an anti-SLAPP motion, the movant must first make '"a threshold showing that the challenged cause of action" arises from an act in furtherance of the right of petition or free speech in connection with a public issue.' [Citation.]" (Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515, 522 (Fitzgibbons).)

"[T]he statutory phrase 'cause of action . . . arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the 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. [Citations.] 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e) . . . .' [Citations.]" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, original italics (Cotati).)

Section 425.16, subdivision (e), defines the categories of protected activities as follows: "As used in this section, 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (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; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (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."

Once the moving party defendant establishes the claim arises from protected activity, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (Fitzgibbons, supra, 140 Cal.App.4th at p. 522.) "'In order to establish a probability of prevailing on the claim [citation], a plaintiff responding to an anti-SLAPP motion must "'state[] and substantiate[] a legally sufficient claim.'" [Citations.] Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." [Citations.]'" (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476, original italics (Premier Medical).)

A trial court's order granting or denying an anti-SLAPP motion is reviewed de novo. (Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 866 (Nguyen).)

B. Valle Road Was Barred from Amending Its Complaint

The operative first amended complaint alleged a single cause of action against J STAR Holdings for "Intentional Interference with Business Relations -- Inducing Breach of Contract." Valle Road alleged J STAR Holdings induced J STAR Motors and Merrell to breach their lease with Valle Road by copying Zions Bank's counsel on the letter requesting Valle Road stipulate to relief from the automatic bankruptcy stay.

In opposing the anti-SLAPP motion, Valle Road did not argue the letter supported its claim. Instead, Valle Road argued J STAR Holdings induced J STAR Motors and Merrell to breach the lease by finding a new location for J STAR Motors' facilities while J STAR Motors was still under lease with Valle Road. At the hearing, Valle Road offered a "redrafted" pleading asserting this new basis for liability and deleting reference to the letter. Thus, Valle Road now sought to base its sole cause of action against J STAR Holdings on finding a new location for J STAR Motors. Valle Road explained it redrafted its pleading to eliminate conduct protected by section 425.16 and replace it with unprotected conduct.

The trial court correctly refused to consider Valle Road's proposed pleading. A plaintiff cannot amend a pleading to avoid a pending anti-SLAPP motion. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074 (Simmons); see also Navellier v. Sletten (2003) 106 Cal.App.4th 763, 772 [plaintiff cannot use "eleventh-hour amendment" to plead around anti-SLAPP motion].) Allowing an amendment to eliminate allegations bringing it within the scope of the anti-SLAPP statute "would completely undermine the statute by providing the pleader a ready escape from section 425.16's quick dismissal remedy."*fn2 (Simmons, at p. 1073.)

Accordingly, in reviewing the trial court's ruling, we may not consider Valle Road's argument that J STAR Holdings' discovery of a new location for J STAR Motors supported its third cause of action for interference with business relations.

C. Standing to Obtain Relief Through the Underlying Petitioning Activity Was Not Required

The trial court denied J STAR Holdings' anti-SLAPP motion because it was not a party to the lease and therefore lacked standing to seek relief from the bankruptcy court. Specifically, the trial court explained, although it found the letter constituted a statement made in connection with judicial proceedings under section 425.16, subdivision (e)(2), J STAR Holdings could not rely on the protections of the anti-SLAPP law because it was not a party to the lease and consequently could not obtain the relief requested in the letter.

The trial court raised the standing issue on its own initiative. Neither the trial court nor Valle Road cited any authority requiring a party to establish it had standing to seek relief in the prior proceeding before it could obtain anti-SLAPP protection in the current proceeding. Indeed, a standing requirement is inconsistent with section 425.16, subdivision (a)'s mandate to construe the anti-SLAPP statute broadly.*fn3 It also is inconsistent with case authority affording anti-SLAPP protection to parties who exercise petition rights on behalf of, or for the benefit of, others.

In Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106 (Briggs), our Supreme Court concluded that the anti-SLAPP statute protected a nonprofit corporation's statements advising tenants how to initiate litigation against their landlord even though the corporation had no right to seek relief in its own name. (Briggs, at pp. 1114-1116.) In reaching this conclusion, the court examined the specific conduct giving rise to the causes of action against the nonprofit corporation -- i.e., statements advising the tenants on how to sue their landlord -- not the corporation's ability to seek the relief sought by the tenants. (Id. at p. 1115.) The court concluded "the statute does not require that a defendant moving to strike under section 425.16 demonstrate that its protected statements or writings were made on its own behalf . . . ." (Id. at p. 1116, original italics; see also Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 (Rusheen) [section 425.16 protected attorney who furthered the petition rights of a client].)

Similarly, in Vergos v. McNeal (2007) 146 Cal.App.4th 1387 (Vergos), the appellate court held the anti-SLAPP statute protected a hearing officer's conduct in deciding a public employee's administrative grievance even though the hearing officer had no right to request any relief in the administrative proceeding.*fn4 As in Briggs, the Vergos court examined the specific conduct giving rise to the cause of action against the hearing officer -- i.e., hearing, processing, and deciding the employee's grievance -- not the hearing officer's right to seek relief for herself. The court concluded the defendant "acted in furtherance of the right to petition within the meaning of section 425.16, even though it was not her own right to petition at stake." (Vergos, at p. 1399.)

These cases demonstrate the trial court erred by requiring J STAR Holdings to show it had the right to seek relief from the bankruptcy court. The nonprofit corporation in Briggs and the hearing officer in Vergos lacked standing to seek relief in the underlying litigation and administrative proceeding, just as J STAR Holdings lacked standing to seek relief in Valle Road's bankruptcy proceeding. That lack of standing, however, did not defeat the anti-SLAPP motions in Briggs and Vergos, and does not defeat J STAR Holdings' motion because section 425.16 does not require the moving party to establish standing.

To erect a standing barrier would undermine the broad purposes of the anti-SLAPP statute, which only examines whether the challenged cause of action arises out of protected petitioning activity, i.e., whether a defendant made the disputed statement or writing on an issue under review by a judicial or other official body. (§ 425.16, subd. (e)(2).) As Briggs and Vergos make clear, there is no requirement that a party invoking the anti-SLAPP law's protections must first demonstrate it could have sought relief through the underlying petitioning activity.

Valle Road contends Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141 (Shekhter), supports the standing requirement imposed by the trial court. Valle Road's reliance on Shekhter is misplaced. Shekhter held the person bringing the anti-SLAPP motion must be the person being sued for the exercise of their own right of petition or free speech. (Shekhter, at p. 152.) It does not follow, however, that the party seeking anti-SLAPP protection must have standing to request the relief sought through the underlying petitioning activity. Indeed, Shekhter does not address that issue.

The parties bringing the anti-SLAPP motion in Shekhter were attorneys being sued for exercising their own free speech rights by making various comments to the media on behalf of their client. They had the right to seek anti-SLAPP protection because they were exercising their own free speech rights, albeit on behalf of their client. (Shekhter, supra, 89 Cal.App.4th at p. 153.) The Shekhter court observed "[w]e do not address the issue of whether the special motion to strike could have been brought by [the attorneys] based on the exercise of the right to petition since they were acting as counsel in the Financial litigation." (Id. at p. 154.) Our Supreme Court later held that attorneys are entitled to anti-SLAPP protection for helping their clients exercise their petition rights. (Rusheen, supra, 37 Cal.4th at p. 1056 [section 425.16 protected attorney who furthered the petition rights of a client].)

Based on the anti-SLAPP statute's breadth, and the holdings in Briggs and Vergos, we conclude J STAR Holdings could invoke the anti-SLAPP law without showing it was entitled to the relief sought in the underlying petitioning activity.

D. Valle Road's Cause of Action Arose From Protected Activity

To invoke the anti-SLAPP law's protection, J STAR Holdings was required to make "a threshold showing" that Valle Road's cause of action arose from protected activity, i.e., demonstrate its conduct fit within one of the categories spelled out in section 425.16, subdivision (e). (Cotati, supra, 29 Cal.4th at pp. 76, 78.) The relevant category in this case is subdivision (e)(2), which defined "any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body" as a protected activity. "Statements and writings made in connection with litigation are therefore covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concern a matter of public interest." (GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 907 (GeneThera).)

Valle Road's only cause of action against J STAR Holdings arose out of the letter J STAR Motors and Merrell's lawyer sent to Valle Road's bankruptcy counsel and copied to Zions Bank's counsel. The letter requested Valle Road stipulate to relief from the automatic stay arising from its bankruptcy proceeding. Although Valle Road alleged counsel sent the letter on behalf of J STAR Motors, Merrell, and J STAR Holdings, the letter did not mention J STAR Holdings. Nonetheless, Valle Road alleged J STAR Holdings copied Zions Bank's counsel to disrupt Valle Road's lease with J STAR Motors and Merrell.

Although the letter does not refer to J STAR Holdings, we nonetheless must analyze whether it constitutes protected activity under section 425.16, subdivision (e)(2). As explained above, it makes no difference J STAR Holdings lacked standing to seek the relief requested in the letter. The issue is whether the letter constitutes a statement in connection with a judicial proceeding under section 425.16, subdivision (e)(2). There can be no dispute it does.

"An attorney's communication with opposing counsel on behalf of a client regarding pending litigation directly implicates the right to petition and thus is subject to [the anti-SLAPP statute]." (GeneThera, supra, 171 Cal.App.4th at p. 908.) Here, the letter addressed to the debtor's counsel in a pending bankruptcy proceeding requested relief from the automatic stay to pursue a claim against the debtor regarding an asset of the bankruptcy estate, i.e., the lease J STAR Motors and Merrell had with Valle Road. This is clearly a communication with opposing counsel regarding a pending judicial proceeding.

Moreover, the letter discussed J STAR Motors and Merrell's intent to initiate a state court action to terminate the lease. A letter sent "'in anticipation of litigation "contemplated in good faith and under serious consideration"'" also is protected petitioning activity under section 425.16, subdivision (e)(2). (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268 (Neville) quoting Rohde v. Wolf (2007) 154 Cal.App.4th 28, 36.)

Sending a copy of the letter to Zions Bank's counsel did not change the protected nature of the activity. A statement is "'in connection with'" a judicial proceeding under section 425.16, subdivision (e)(2), if it relates to the substantive issues in the proceeding and is directed to persons having some interest in the proceeding. (Neville, supra, 160 Cal.App.4th at p. 1266.) The recipient need not be a party or potential party. (Id. at p. 1270.) Zions Bank was Valle Road's secured creditor, holding a deed of trust on the same property J STAR Motors and Merrell leased from Valle Road. The property and the lease constituted assets of Valle Road's bankruptcy estate. J STAR Motors and Merrell's efforts to begin litigation terminating their rent obligations under the lease were clearly of interest to Zions Bank as Valle Road's creditor in the bankruptcy proceeding. (See, e.g., id. at p. 1259 [letter employer sent to customers warning former employee stole trade secrets, and suggesting customers should not do business with former employee to avoid potential involvement in ensuing litigation, protected under section 425.16, subdivision (e)(2)]; Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5-6 [letter from homeowner association's counsel to nonparty association members regarding litigation status against one association member protected under section 425.16, subdivision (e)(2)].)

Relying on Paul v. Friedman (2002) 95 Cal.App.4th 853 (Paul), Valle Road argues J STAR Holdings did not engage in protected petitioning activity because J STAR Holdings lacked a sufficient connection to the bankruptcy proceeding. In Paul, the Court of Appeal held section 425.16, subdivision (e)(2), "does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding. The statements or writings in question must occur in connection with 'an issue under consideration or review' in the proceeding." (Paul, at p. 866.)

That connection was lacking in Paul because, although the conduct giving rise to the challenged cause of action generally occurred in the context of an earlier arbitration, the conduct had nothing to do with the issues raised in that proceeding. (Paul, supra, 95 Cal.App.4th at p. 866.) The plaintiff in Paul sued an attorney who represented an opposing party in the earlier arbitration case. The plaintiff alleged the attorney conducted a harassing investigation into the plaintiff's personal life bearing no relationship to the claims asserted in the arbitration, and then disclosed some of the personal information to nonparties having no connection to the arbitration. (Ibid.)

Paul does not support Valle Road's position. Here, the letter bears more than a remote connection with the bankruptcy. Once Valle Road filed bankruptcy, all its property became assets of the bankruptcy estate, including Valle Road's right to receive rent from J STAR Motors and Merrell under the lease. (March et al., Cal. Practice Guide: Bankruptcy (The Rutter Group 2010) ¶¶ 6:15; 6:56.) A request for relief from the automatic bankruptcy stay permitting a state court action that could potentially terminate Valle Road's right to receive future rental payments constitutes a statement made in connection with an issue under consideration in the bankruptcy proceeding.

Valle Road further argues the letter did not constitute protected activity because it addressed claims by J STAR Motors and Merrell only, not J STAR Holdings. This argument, however, is nothing more than a restatement of the argument J STAR Holdings is not entitled to anti-SLAPP protection because it lacked standing to seek any relief from the bankruptcy court regarding the lease. As explained above, it is irrelevant whether J STAR Holdings had standing to seek the relief described in the letter. The appropriate inquiry is whether the letter contains statements bearing a connection to a judicial proceeding. As discussed above, J STAR Holdings has shown the requisite connection.

The doctrine of judicial estoppels further supports the conclusion J STAR Holdings engaged in protected activity. The doctrine prevents Valle Road from arguing J STAR Holdings lacks a sufficient connection with the letter to obtain the protection of the anti-SLAPP statute and simultaneously allege in its complaint the letter was sent on behalf of J STAR Holdings.*fn5 (See Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 943 ["'"Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding. The doctrine serves a clear purpose: to protect the integrity of the judicial process." [Citation.]' [Citation.] Judicial estoppel applies where: '(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake'"].)

We conclude Valle Road's cause of action against J STAR Holdings arose out of protected petitioning activity within the meaning of section 425.16, subdivision (e)(2).

E. Valle Road Failed to Establish a Probability of Prevailing

Once J STAR Holdings established the cause of action against it arose out of protected activity, the burden shifted to Valle Road to establish a probability of prevailing on its cause of action. Section 425.16 required Valle Road to show it adequately alleged its cause of action and there was sufficient evidence to sustain a favorable judgment if the trier of fact credited Valle Road's evidence. (Premier Medical, supra, 136 Cal.App.4th at p. 476.)

Valle Road alleged a single cause of action against J STAR Holdings for "Intentional Interference with Business Relations -- Inducing Breach of Contract." In sum, Valle Road alleged J STAR Holdings induced J STAR Motors and Merrell to breach their lease with Valle Road. Valle Road did not allege J STAR Holdings merely interfered with Valle Road's lease with J STAR Motors and Merrell, rendering performance under the lease more costly or burdensome. (See Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1129 (Pacific Gas) ["cases have pointed out that while the tort of inducing breach of contract requires proof of a breach, the cause of action for interference with contractual relations is distinct and requires only proof of interference"].)

The elements of Valle Road's claim for inducing breach of contract are (1) a contract between Valle Road, and J STAR Motors and Merrell; (2) J STAR Holdings knew of the contract; (3) J STAR Holdings intended to cause J STAR Motors and Merrell to breach the contract; (4) J STAR Holdings' conduct caused J STAR Motors and Merrell to breach the contract; (5) the breach harmed Valle Road; and (6) J STAR Holdings' conduct was a substantial factor in causing Valle Road's harm. (CACI No. 2200; see also Pacific Gas, supra, 50 Cal.3d at p. 1126.)

Valle Road neither adequately alleged all elements nor presented sufficient admissible evidence to support its claim. For example, Valle Road failed to allege causation. In other words, Valle Road's allegations failed to explain how copying Zions Bank's counsel on the letter requesting a stipulation for relief from the automatic bankruptcy stay caused J STAR Motors and Merrell to breach the lease. Valle Road alleged the letter "was specifically intended to disrupt" the lease and that J STAR Motors and Merrell breached the lease. Valle Road, however, does not allege copying the letter to Zions Bank's counsel actually caused the breach. In the absence of some allegations making that causal connection, the conclusion the letter caused the breach does not logically follow. On its face, the letter was sent on behalf of J STAR Motors and Merrell, not J STAR Holdings, and Valle Road makes no attempt to explain how a letter from J STAR Motors and Merrell caused them to breach their own lease with Valle Road.

Neither Valle Road's opposition in the trial court, nor its brief in this court, argued the letter caused J STAR Motors and Merrell to breach the lease. Instead, Valle Road argued J STAR Holdings induced the breach by finding a new location for J STAR Motors' facilities. As noted above, Valle Road cannot oppose the anti-SLAPP motion by changing the activity giving rise to its claim.

Even if we considered Valle Road's unpled theory, Valle Road failed to offer admissible evidence to meet its burden of establishing a probability of prevailing. This theory fails because Valle Road acknowledged J STAR Motors bought the new property, and merely formed and used J STAR Holdings to take title. Valle Road presented no evidence to show J STAR Holdings, as opposed to J STAR Motors, sought out the new location.*fn6

Accordingly, we conclude Valle Road failed to meet its burden of establishing a probability of prevailing on its claim against J STAR Holdings.

III DISPOSITION

The trial court order denying J STAR Holdings' anti-SLAPP motion is reversed. The matter is remanded to the trial court to enter a new order granting the

motion and to decide any motion for attorney fees and costs under section 425.16, subdivision (c). J STAR Holdings shall recover its costs on appeal.

WE CONCUR: RYLAARSDAM, ACTING P. J. MOORE, J.


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