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Don H. Lee v. Financial Pacific Insurance Company

June 29, 2012

DON H. LEE, PLAINTIFF AND APPELLANT,
v.
FINANCIAL PACIFIC INSURANCE COMPANY, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 10CV36902)

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

Lee v. Financial Pacific Ins. Co.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Financial Pacific Insurance Company (Financial Pacific) filed an anti-SLAPP motion, pursuant to Code of Civil Procedure section 425.16,*fn1 to strike plaintiff Don H. Lee's complaint.*fn2 The trial court granted the motion, finding that the complaint arose from Financial Pacific's protected petitioning activity and Lee did not have a probability of prevailing on the merits.

We affirm.

ANTI-SLAPP LAW

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." "As used in [section 425.16], '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 . . . ." (§ 425.16, subd. (e).)

"Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.'" (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

We review an order granting an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) "'We consider "the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) However, we neither "weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." [Citation.]' [Citation.]" (Flatley v. Mauro, supra, at p. 326.)

BACKGROUND

Westwind Development, Inc. (Westwind) developed the subdivision called Gold Strike Heights in Calaveras County. Financial Pacific Insurance Company, the defendant in the current action, issued bonds guaranteeing to the Gold Strike Heights Association, representing the homeowners, that Westwind would perform its obligations.

There are three actions that are relevant to this appeal:

* The first was an action by Gold Strike Heights Association (the rights to which Gold Strike Heights Association assigned to Don H. Lee, the plaintiff in the current action) to recover from Financial Pacific on a bond guaranteeing Westwind's payment of homeowners association dues to Gold Strike Heights Association. We refer to this action as the "dues action."

* The second was an action by Gold Strike Heights Homeowners Association (note the difference from Gold Strike Heights Association) to recover from Financial Pacific on a bond guaranteeing Westwind's construction of a ...


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