California Court of Appeals, Second District, Eighth Division
from an order of the Superior Court of Los Angeles County.
No. SC127365 Gerald Rosenberg, Judge. Reversed and remanded
Wright Tremaine, Mary H. Haas and Rochelle L. Wilcox for
Defendants and Appellants.
McGarrigle, Kenney & Zampiello, Patrick C. McGarrigle and
Marianne Fratianne for Plaintiff and Respondent.
BIGELOW, P. J.
acrimonious dispute between neighbors over a driveway
easement, defendants Stephen and Tracy Lee appeal the trial
court's denial of a motion pursuant to Code of Civil
Procedure section 425.16, the anti-SLAPP statute,
directed at three claims plaintiff Starview Property, LLC
asserted for the first time in its first amended complaint.
Although the Lees' motion was timely filed within 60 days
after the filing of the amended complaint, the trial court
denied the motion as untimely because the new claims were
based on facts alleged in the original complaint and the
motion was filed more than 60 days after service of the
original complaint. (Code Civ. Proc., § 425.16, subd.
(f) [60-day deadline to file motion after service of
court erred. An anti-SLAPP motion may be brought within 60
days of service of an amended complaint “ ‘if the
amended complaint pleads new causes of action that could not
have been the target of a prior anti-SLAPP motion, or adds
new allegations that make previously pleaded causes of action
subject to an anti-SLAPP motion.' ” (Newport
Harbor Ventures, LLC v. Morris Cerullo World Evangelism
(2018) 4 Cal.5th 637, 641 (Newport Harbor II).)
Starview's three newly pled causes of action in its
amended complaint plainly could not have been the target of a
prior motion, even if they arose from protected activity
alleged in the original complaint. We reverse the court's
order. We express no views on the merits of the motion and
remand for the court to consider the merits in the first
parties own neighboring parcels of land in Brentwood-Starview
owns 816 Glenmere Way (the 816 property) and the Lees own 815
Glenmere Way (the 815 property). In 1958, the Lees'
predecessor granted an easement to Starview's predecessor
over a driveway entirely situated on the Lees' property
for ingress, egress, and driveway purposes. In 1959, the
parties' predecessors modified the easement with an
agreement containing this clause: “Should any further
documents be necessary to be placed of record for the purpose
of perfecting title to the matters set forth in this
agreement, the parties hereto mutually agree to execute such
2016, Starview purchased the 816 property, and it intended to
remodel the existing home. In 2017, it submitted
architectural plans to the City of Los Angeles (the City). As
a condition of permit approval, the City required Starview to
sign a Covenant and Agreement for Community Driveway and to
secure the Lees' signature on the document as well. The
document was required because anyone accessing one of the
five required parking spaces on Starview's property would
have to use the driveway on the Lees' property.
Lees declined to sign the covenant. Starview alleged the Lees
claimed they were entitled to new consideration and to
condition their performance on extra-contractual demands for
indemnity, construction, releases, and payment of $5, 000.
Starview eventually installed a vehicle lift system that was
approved by the City, which avoided the parking problem and
avoided requiring the Lees to sign the Covenant.
filed the original complaint on April 11, 2017, alleging
three contract-based claims: (1) breach of contract; (2)
specific performance; and (3) injunctive relief. All three
claims were based on the Lees' failure to sign the
covenant in breach of the easement agreement. The Lees did
not file an anti-SLAPP motion to strike any of these causes
parties conducted some discovery and filed motions for
summary judgment/adjudication. Then, over a year after filing
the original complaint, Starview filed a first amended
complaint (FAC) on May 17, 2018. The FAC added factual detail
but alleged the same basic acts of the Lees refusing to sign
the covenant in breach of the easement agreement and making
extra-contractual demands for additional concessions and
consideration. The FAC realleged causes of action for breach
of contract and injunctive relief, but added claims for
breach of the implied covenant of good faith, negligent and
intentional interference with easement, and private nuisance.
The newly added claims were based on both the Lees'
failure to sign the covenant and on their extra-contractual
11, 2018-55 days after the FAC was deemed filed-the Lees
filed their anti-SLAPP motion. It sought to strike the newly
added causes of action for breach of the implied covenant of
good faith and for negligent and intentional interference
with easement. Alternatively, it sought to strike certain
factual allegations of “pre-litigation
communications” related to the Lees'
extra-contractual demands, including factual allegations that
appeared in the original complaint. In the motion, the Lees
argued their failure to sign the covenant and their
pre-litigation communications were protected activity, and
Starview could not prevail on the three new claims.
opposition, Starview argued the motion was untimely because
the claimed protected activity was alleged in the original
complaint and the motion was filed more than 60 days after
the original ...