Trial Court: Santa Cruz County Superior Court Trial Judge: Hon. Timothy R. Volkmann (Santa Cruz County Super. Ct. No. CV167563)
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
This case concerns a conflict over the use of a parcel, Parcel B, owed by Plaintiff M.F. Farming, Co. ("MF") but subject to an easement that plaintiff had granted to defendant Couch Distributing Company, Inc. ("Couch Distributing") decades earlier along with two adjoining parcels, Parcels A and C. Parcel B is an approximately 60-foot-wide strip of land, which plaintiff MF retained, over which defendant Couch Distributing was granted "a nonexclusive right of way for ingress and egress and for all utility purposes." Over the years, the distributing business of defendant Couch Distributing was built on the adjoining parcels and the easement was used as an essentially private road to service the business. More recently, Plaintiff sought to use Parcel B as a tertiary public road to access a proposed development, the Manabe/Ow Development, in the City of Watsonville ("City"). The property dispute emerged during the development process with the City.
Plaintiff MF appeals from an order granting an anti-SLAPP motion brought by defendant Couch Distributing as to three causes of action: slander of title (second cause of action), cancellation of cloud on title (third cause of action), and injunctive relief (fourth cause of action) pursuant to Code of Civil Procedure section 425.16.*fn1 (§ 904.1, subd. (a)(13); see 425.16, subd. (i).) The first cause of action to quiet title was not challenged by the motion. Defendant Couch Distributing acknowledges that a legitimate dispute remains as to the parties' respective rights with regard to Parcel B.
Relevant Procedural History
On May 18, 2010, plaintiff MF filed a complaint for quiet title, slander of title, cancellation of cloud on title, and injunctive relief.
On July 30, 2010, defendant Couch Distributing filed a special motion to strike (anti-SLAPP motion) pursuant to section 425.16 requesting that the court strike the complaint's second and third causes of action. The declaration of George W. Couch, III ("George Couch" or "Couch"), the president and chief executive officer of defendant Couch Distributing, was filed in support of the anti-SLAPP motion.
By request filed on July 30, 2010, defendant Couch Distributing requested that the court take judicial notice of certain recorded documents or maps.
On September 13, 2010, plaintiff filed a first amended complaint for quiet title, slander of title, cancellation of cloud on title, and injunctive relief.
On October 1, 2010, defendant Couch Distributing filed an amended notice of its anti-SLAPP motion to strike the second, third and fourth causes of action of the first amended complaint. The court was asked to refer to the previously-filed declaration of George Couch, which was attached.
On October 14, 2010, defendant Couch Distributing filed the second-amended notice of its anti-SLAPP motion.
On October 27, 2010, plaintiff MF filed its opposition to the anti-SLAPP motion. In support of its opposition, plaintiff filed the initial declaration of Louis Jemison, then president of MF.
On November 2, 2010, defendant Couch Distributing filed a supplemental declaration of George Couch. It also filed hearsay objections to Jemison's declaration.
On November 9, 2010, defendant Couch Distributing filed the third-amended notice of its anti-SLAPP motion.
On November 17, 2010, plaintiff MF raised certain evidentiary objections and filed supplemental declarations together with correspondence.
On December 6, 2010, plaintiff MF filed the declaration of Charles D. Eadie, a land use consultant, and a supplemental declaration of Jemison.
On December 14, 2010, the court heard the anti-SLAPP motion. By order filed January 5, 2011, the court granted defendant Couch Distributing's anti-SLAPP motion. It concluded that the second, third, and fourth causes of action of the first-amended complaint arose from protected activities and plaintiff MF failed to establish a probability that it would prevail on any of those causes of action and dismissed them without leave to amend.*fn2
On January 27, 2010, defendants Couch Distributing and Couch Family Partnership filed a cross-complaint for quiet title, declaratory relief, and injunctive relief.
Also on January 27, 2010, defendants Couch Distributing and Couch Family Partnership filed an answer to plaintiff's first amended complaint.
In deciding an anti-SLAPP motion, courts must "consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).)
The first amended complaint alleged the following. Plaintiff MF and defendant Couch Distributing entered into a written agreement in about November 1974 in which MF agreed to sell Parcels A and C to defendant Couch Distributing and to grant the company ingress and egress over Parcel B. These parcels were on the ocean side of and abutted Highway 1. By grant deed recorded on June 5, 1975, plaintiff MF granted two parcels, Parcel A and Parcel C, to defendant Couch Distributing and also granted it "a nonexclusive right of way for ingress and egress and for all utility purposes over Parcel B." Defendant Couch Distributing purchased Parcel A for purposes of constructing and operating its Budweiser distribution center. Defendant Couch Distributing subsequently "sold or otherwise transferred Parcels A and C" to the Couch Family Partnership, which leases the parcels to Couch.*fn3
This complaint stated on information and belief that "on a parcel map dated December, 1979, as well as subsequent parcel maps submitted to the City of Watsonville by Couch [Distributing] as part of its application for building permits, Couch [Distributing] knowingly showed parcel B as a right of way rather than as a separate parcel in order to obtain permits which were otherwise not legal." At some unspecified time, defendant Couch Distributing constructed a railroad spur across Parcel B to its rear loading dock. It also created "minor encroachments on the edges of Parcel B, including trees, lights and lamp posts," which were discovered by plaintiff MF in about 1984.
The complaint further stated that plaintiff MF now desires to develop and use its property that abuts the inland side of Highway 1 and intends to use Parcel B for access. Couch Distributing contends that MF "has in some manner lost the right to use Parcel B for ingress and egress . . . ."
The slander of title cause of action alleged that, "on or about June 20, 1988 and June 1, 1998 and possibly on various dates thereafter," defendant Couch Distributing published, without privilege or justification, false maps and plot plans that cast doubt on plaintiff's title. The cancellation of cloud on title cause of action alleged that the improperly published documents were false and fraudulently indicated that defendant Couch Distributing owned the property at issue and plaintiff MF owned only an easement. It also stated that two of the improperly published documents were published on June 20, 1988 and June 1, 1998. It further alleged that such "publication was motivated by oppression, fraud, and/or malice . . . in that defendants were using the false claim of ownership . . . as grounds for obtaining permits for the unlawful development of defendants' property and to prevent plaintiff from developing the subject property and/or causing various governmental agencies to coerce plaintiff into granting defendants rights and/or ownership of the subject property." The action for injunctive relief alleged that the defendants had blocked plaintiff from the free use of its property of Parcel B as a means of ingress and egress to its property abutting Highway 1.
In his declaration in support of the anti-SLAPP motion, George Couch stated that since its purchase of the parcels, defendant Couch Distributing "has built, developed, and operated a major regional beverage distribution warehouse and related facilities and operations" on its parcels. A copy of a parcel map, recorded December 26, 1979, was attached to Couch's declaration and he stated on ...