Sweetflower Pasadena v. City of Pasadena CA2/7

Filed 5/19/22 Sweetflower Pasadena v. City of Pasadena CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SWEETFLOWER PASADENA B308897
LLC,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No.
20STCP01456)
v.
CITY OF PASADENA,
Defendant,
INTEGRAL ASSOCIATES
DENA, LLC,
Real Party in Interest
and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Carlson & Nicholas and Richard A. McDonald for Real
Party in Interest and Appellant.
No appearance for Defendant.
Nossaman, Artin N. Shaverdian, Gabriela S. Pérez,
Gregory W. Sanders and John J. Flynn III for Plaintiff and
Respondent.
__________________
SweetFlower Pasadena, LLC filed a verified petition for
writ of mandate and complaint seeking to compel the City of
Pasadena to set aside a conditional use permit the City had
granted to SweetFlower’s competitor, Integral Associates Dena,
LLC, and to obtain a judicial declaration that Integral was
ineligible for the permits required to open and operate a cannabis
retail store in the City. Integral, named in SweetFlower’s
petition/complaint as real party in interest, filed a special motion
1
to strike pursuant to Code of Civil Procedure section 425.16.
The trial court denied Integral’s motion, concluding none of
SweetFlower’s claims arose from protected speech or petitioning
activity. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. SweetFlower’s Petition and Complaint
According to SweetFlower’s petition/complaint, in June
2018 City voters approved two initiative measures to legalize and
regulate commercial cannabis businesses within City boundaries.
(See Pas. Mun. Code, §§ 5.28.010 et seq., 5.78.010 et seq.,
8.11.010 et seq., 17.50.066.) The approved ordinances authorized
the operation of up to six retail cannabis businesses within City
limits; included zoning restrictions that required the businesses
to be at least 1,000 feet from any other cannabis retailer or
cultivation site and 600 feet from specified “sensitive uses,” such
1
Statutory references are to this code unless otherwise
stated.
2
as any school, park or childcare center; and limited cannabis
retailers to one per city council district. The initiative measures
authorized the City’s manager or his or her designee to
promulgate the rules and procedures governing the application
2
process for the necessary City permits.
a. SweetFlower’s application for a use permit
After a detailed vetting process, the City selected
SweetFlower as one of six eligible candidates to apply for a
conditional use permit to operate a cannabis retail store.
Because zoning restrictions and other limitations in the initiative
measures meant that fewer than six cannabis retailers could
operate simultaneously in the City, the City adopted a first-in-
line selection procedure for the six candidates to apply for a
conditional use permit. Under those rules, permit applications
would be processed in the order received, with the first completed
application for a permit to operate in a specified council district
able to “lock in” the available spot for that district. Any changes
to a submitted application would void the previous application,
sending the applicant to the back of the line.
SweetFlower was the first candidate to submit its
conditional use permit application on June 12, 2019. On June 27,
2019 the City notified SweetFlower its application was
incomplete and would not be processed because the location map
SweetFlower included had not been prepared by a licensed
surveyor, as required by City rules. On June 27, 2019
SweetFlower submitted a second application, this time including
2
Some of the City’s cannabis-related ordinances were
amended in November 2021. Those amendments, the subject of
ongoing litigation between Integral and the City in the
Los Angeles Superior Court, are not at issue in this appeal.
3
a certification that its location map had been reviewed by a
licensed surveyor. The City rejected the second application,
explaining “reviewed by” a licensed surveyor was not the same as
“prepared by” a licensed surveyor. When SweetFlower submitted
its third application on July 3, 2019, the City refused to process it
because the City had already approved Integral’s application for
the same district.
b. SweetFlower’s petition/complaint
SweetFlower filed this lawsuit for a writ of mandate
pursuant to sections 1085 and/or 1094.5 to compel the City to set
3
aside Integral’s conditional use permit. SweetFlower alleged the
City had arbitrarily enforced its own rules by interpreting the
requirement of a location map “prepared by a licensed surveyor”
liberally for Integral and more strictly for SweetFlower.
SweetFlower also alleged City rules required any cannabis
operator that engaged in nonpublic communications with the City
during the vetting process be disqualified from eligibility for a
conditional use permit; Integral’s managing agents privately
3
In addition to this lawsuit, SweetFlower filed at least three
other petitions for writs of mandate involving the City’s cannabis-
related conditional use permit decisions. (See Super. Ct. L.A.
County no. 20STCP00038 [challenging the City’s denial of
SweetFlower’s own conditional use permit application]; Super.
Ct. L.A. County no. 20STCP01048 [challenging the City’s
approval of a conditional use permit for Harvest of
Pasadena LLC, a SweetFlower competitor]; Super. Ct. L.A.
County no. 20STCP03212 [challenging the City’s rejection of
SweetFlower’s request that Integral’s conditional use permit be
set aside based on a material change of control at Integral].)
4
contacted members of the City’s selection committee during the
vetting process; and the City failed to disqualify Integral.
In a separate cause of action for declaratory relief,
SweetFlower alleged the City had misapprehended the initiative
measures, which required the City to deny a conditional use
permit for cannabis retail to any applicant who “has been denied
a permit or state license to engage in commercial cannabis
activity, or has had a permit or state license to engage in
commercial cannabis activity suspended and not reinstated, or
revoked, by any city, county, city and county, or any other state
cannabis licensing authority.” (Pas. Mun. Code, § 5.78.100,
par. A.) According to SweetFlower, the City interpreted that
language to apply to jurisdictions within California.
SweetFlower alleged, and sought a judicial declaration that, “any
other state cannabis licensing authority” included those in other
states and, when so interpreted, made Integral ineligible for a
conditional use permit.
In its prayer for relief SweetFlower sought (1) a peremptory
writ of mandate ordering the City to set aside its grant of a
conditional use permit to Integral; (2) an injunction prohibiting
Integral from taking any further action in reliance on the invalid
conditional use permit and prohibiting the City from taking any
action to process applications by Integral for additional permits
based on the noncompliant conditional use permit; (3) a judicial
declaration that Integral is ineligible to apply for additional
permits based on a noncompliant conditional use permit; and
(4) a judicial declaration that the City’s business license
application, as interpreted by the City, violated the initiative
ordinances.
5
2. Integral’s Special Motion To Strike
Integral filed a special motion to strike the
petition/complaint under section 425.16. Integral argued each
claim was based on oral or written statements made in
connection with Integral’s application for a conditional use
permit or the City’s protected activity in reviewing and
processing Integral’s application within the meaning of
section 425.16, subdivision (e)(1) and (e)(2). In support of this
argument Integral cited paragraphs in the petition/complaint
quoting statements by the City’s planning director, members of
the zoning board and city council members, all of which were
made during official proceedings addressing SweetFlower’s
application and the City’s interpretation and application of the
4
licensed surveyor requirement. Integral also cited
SweetFlower’s allegations that Integral had secretly
communicated with the City during the applicant screening
process, a rules violation that required the City to disqualify it
from consideration for a conditional use permit and the
SweetFlower’s prayer for relief barring Integral from submitting
further permit applications premised on an invalid conditional
use permit. Integral also argued SweetFlower could not
demonstrate any of its claims had merit.
4
SweetFlower alleged the City’s planning director struggled
to explain to SweetFlower in a zoning board meeting what
“prepared by a licensed surveyor” meant; the chair of the zoning
board questioned during that meeting whether other applications
by SweetFlower’s competitors were incomplete under this
standard; and members of the city council cautioned during
SweetFlower’s administrative appeal that the same “strict
standards” should apply to all applications, not just
SweetFlower’s.
6
In its opposition to Integral’s special motion to strike,
SweetFlower argued its claims arose from the City’s failure to
disqualify Integral and the City’s wrongful approval of Integral’s
conditional use permit—acts of governance—and characterized
the quoted statements by City officials and Integral’s private
contacts with the City as providing context for its claims.
The trial court denied Integral’s special motion to strike,
ruling the causes of action arose from the City’s acts of
governance, not the City’s protected speech or petitioning
activity. Because Integral failed to carry its threshold burden to
demonstrate the claims arose from protected speech or petition
activity, the court denied Integral’s special motion to strike
without addressing whether SweetFlower could demonstrate its
claims had minimal merit.
Integral filed a timely notice of appeal from the order
denying its special motion to strike.
DISCUSSION
1. Governing Law and Standard of Review
Section 425.16, commonly known as the anti-SLAPP
statute, makes available a special motion to strike certain
meritless claims early in the litigation: “A cause of action against
a person arising from any act of that person in furtherance of a
person’s right to 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 there is a
probability that the plaintiff will prevail on the claim.” (§ 425.16,
subd. (b)(1); see Rand Resources, LLC v. City of Carson (2019)
6 Cal.5th 610, 619-620 [“[a] court may strike a cause of action
only if the cause of action (1) arises from an act in furtherance of
7
the right of petition or free speech ‘in connection with a public
issue,’ and (2) the plaintiff has not established ‘a probability’ of
prevailing on the claim”].)
Pursuant to section 425.16, subdivision (e), an “‘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, or (4) 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.”
In ruling on a motion under section 425.16, the trial court
engages in a two-step process. “First, the defendant must
establish that the challenged claim arises from activity protected
by section 425.16. [Citation.] If the defendant makes the
required showing, the burden shifts to the plaintiff to
demonstrate the merit of the claim by establishing a probability
of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral);
accord, Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995,
1009 (Bonni); Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061 (Park).) If the moving
party fails to demonstrate that any of the challenged claims for
relief arise from protected activity (the first step), the court
8
properly denies the motion to strike without addressing the
probability of success (the second step). (City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 80-81; Verceles v. Los Angeles
United School Dist. (2021) 63 Cal.App.5th 776, 784.)
“A claim arises from protected activity when that activity
underlies or forms the basis for the claim.” (Park, supra,
2 Cal.5th at pp. 1062-1063; accord, Bonni, supra, 11 Cal.5th at
p. 1009.) Thus, “[t]he defendant’s first-step burden is to identify
the activity each challenged claim rests on and demonstrate that
that activity is protected by the anti-SLAPP statute. A ‘claim
may be struck only if the speech or petitioning activity itself is
the wrong complained of, and not just evidence of liability or a
step leading to some different act for which liability is asserted.’”
(Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884
(Wilson); see Bonni, at p. 1009 [“[t]he defendant’s burden is to
identify what acts each challenged claim rests on and to show
how those acts are protected under a statutorily defined category
of protected activity”]; Park, at p. 1060 [same].)
A motion pursuant to section 425.16 need not challenge an
entire cause of action as pleaded in the complaint. (Bonni, supra,
11 Cal.5th at p. 1010; Baral, supra, 1 Cal.5th at p. 382.) Rather,
“courts should analyze each claim for relief—each act or set of
acts supplying a basis for relief, of which there may be several in
a single pleaded cause of action—to determine whether the acts
are protected and, if so, whether the claim they give rise to has
the requisite degree of merit to survive the motion.” (Bonni, at
p. 1010; accord, Baral, at p. 395; Musero v. Creative Artists
Agency, LLC (2021) 72 Cal.App.5th 802, 815; see Park, supra,
2 Cal.5th at p. 1063 [in determining whether a claim arises from
protected activity, “courts should consider the elements of the
9
challenged claim and what actions by the defendant supply those
5
elements and consequently form the basis for liability”].)
We review do novo an order granting or denying a special
motion to strike under section 425.16. (Wilson, supra, 7 Cal.5th
at p. 884; Park, supra, 2 Cal.5th at p. 1067.)
2. The Court Properly Concluded SweetFlower’s Claims
Did Not Arise From Protected Speech or Petitioning
Activity
SweetFlower’s petition for writ of mandate alleged the City
violated its own rules when it (1) approved Integral’s conditional
use permit application despite a deficient location map and
(2) failed to disqualify Integral from the applicant pool after
Integral made private overtures to the City. SweetFlower’s claim
for declaratory relief (apart from its request for a judicial
declaration concerning the meaning of certain language in the
5
In its written ruling denying Integral’s special motion to
strike, the court stated, “[T]he true basis for liability and the
gravamen of the petition” is the City’s acts of governance.
Although the court used the term “gravamen,” the court’s ruling
as a whole, including the language immediately preceding the
word “gravamen,” reflects a proper focus on the basis for the
City’s liability in accordance with Baral, and not on the “gist or
essence” of SweetFlower’s petition/complaint. (Cf. See Bonni,
supra, 11 Cal.5th at p. 1012 [“[W]e do not suggest that every
court that has continued to label its approach a gravamen test
even after Baral has erred. Some courts have invoked the term
not in the way [defendant] suggests—to determine the essence or
gist of a so-called mixed cause of action—but instead to
determine whether particular acts alleged within the cause of
action supply the elements of a claim [citation] or instead are
incidental background”].)
10
ordinance) was essentially the same. Integral contends each of
these claims arose from protected speech and petitioning activity
within the meaning of section 425.16, subdivision (e)(1)
and/or (e)(2).
a. SweetFlower’s claim the City wrongfully approved
Integral’s conditional use permit
Integral contends statements by City officials and
employees discussing the licensed-surveyor requirement in
official meetings are protected as an act in furtherance of a
petition and speech activity under section 425.16,
subdivision (e)(1), and form the basis for most of SweetFlower’s
claims. While Integral is certainly correct that the statements by
City officials during official City hearings fit within the definition
of protected activity under section 425.16, subdivision (e)(1), it is
the City’s alleged arbitrary application of its rules in granting
Integral’s application and denying SweetFlower’s, not the City’s
statements themselves, that is the wrong alleged in
SweetFlower’s petition/complaint. (See Park, supra, 2 Cal.5th at
pp. 1063-1064.)
We addressed a nearly identical issue in Shahbazian v.
City of Rancho Palos Verdes (2017) 17 Cal.App.5th 823(Shahbazian). Like SweetFlower, the plaintiffs in Shahbazian
alleged the City of Rancho Palos Verdes (RPV) had “‘acted
arbitrarily and engaged in illegal selective enforcement by
refusing to strictly enforce and follow its own ordinances with
respect to the Hessers while having previously and at the same
time strictly enforced such ordinances as to the Shahbazians.’”
(Id. at p. 828.) RPV moved to strike the complaint under
section 425.16, subdivision (e)(2), contending that claim arose out
of statements by public officials in connection with a matter
11
under consideration by RPV. The trial court denied the motion,
and we affirmed. We explained the Shahbazians’ allegations
“ar[o]se from [RPV]’s decisions to grant the Hessers a permit for
their wall (allegedly a violation of local laws) and to deny the
Shahbazians a permit for their deck. [Citation.] While [RPV]’s
decisions followed public hearings at which members of the city
council and [public] employees undoubtedly exercised their free
speech rights, the Shahbazians’ causes of action do not arise from
6
(or even allude to) that speech.” (Id. at p. 835.)
In contrast to the complaint in Shahbazian, SweetFlower’s
petition/complaint expressly identifies, and at times quotes
directly, statements by City agents and officials made at various
government hearings. However, none of those statements by the
City officials or employees comprises the wrongs alleged—the
decision to grant Integral a conditional use permit and to deny
the same to SweetFlower. SweetFlower’s claim the City failed to
hold Integral to the same strict standard as SweetFlower exists
independently of any of those statements. (See Park, supra,
2 Cal.5th at p. 1068 [“The dean’s alleged comments may supply
evidence of [discriminatory] animus, but that does not convert
the statements themselves into the basis for liability. As the trial
court correctly observed, Park’s complaint is ‘based on the act of
denying plaintiff tenure based on national origin. Plaintiff could
have omitted allegations regarding communicative acts . . . and
still state the same claims’”]; Area 51 Productions, Inc. v. City of
Alameda (2018) 20 Cal.App.5th 581, 596 [communications from
6
Integral’s failure to address Shahbazian in both its opening
brief and reply papers is troubling, especially considering
SweetFlower’s significant reliance on the case in its opposition
papers.
12
the city “that led to and that followed” the alleged breach—the
city’s refusal to issue a license—were “merely incidental to the
asserted claims” against the city for breach, interference, and
unfair business practices]; cf. Rand Resources, LLC v. City of
Carson, supra, 6 Cal.5th at p. 622 [in claim for fraudulent
misrepresentation, mayor and city officials’ statements are
“themselves the ‘wrong[s] complained of’”].)
Graffiti Protective Coatings, Inc. v. City of Pico Rivera
(2010) 181 Cal.App.4th 1207, 1211 (Graffiti Protective), cited with
approval in Park, supra, 2 Cal.5th at page 1065, and discussed at
length by this court in Shahbazian, supra, 17 Cal.App.5th at
pages 833 to 834, reached a similar conclusion. In Graffiti
Protective the plaintiff filed a petition for writ of mandate
asserting the City of Pico Rivera violated its own rules by
awarding a contract to the plaintiff’s competitor without
requiring the competitor to undergo a competitive bidding
process. The City of Pico Rivera filed a special motion to strike
the petition, and the trial court granted the motion. In reversing
the trial court’s order, the Graffiti Protective court explained the
complaint did not arise from the City of Pico Rivera’s protected
activity despite multiple statements by city employees quoted in
the petition: The statements by government officials “assist in
telling the story,” the court explained, but the claims are based
not on those statements but on “state and municipal laws
requiring the City [of Pico Rivera] to award certain contracts
through competitive bidding.” (Graffiti Protective, at pp. 1215,
1224; cf. City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 425
[distinguishing between complaints against a public entity for
“acts of governance” preceding or following statements by
government officials, which would not be subject to a special
13
motion to strike, and a complaint against the officials based on
their statements themselves, which could be].)
Integral’s reliance on Sugarman v. Brown (2021)
73 Cal.App.5th 152 (Sugarman) is misplaced. In Sugarman a
bank’s former board president and chief executive officer sued the
bank’s lead auditor, among others, contending the auditor’s
fraudulent misrepresentations attached to the bank’s 10-K
annual report filed with the Securities and Exchange
Commission (SEC) had induced him to hold onto his bank
securities. (Id. at p. 170.) The auditor filed a special motion to
strike, asserting statements made in a report filed with the SEC
were protected under section 425.16, subdivision (e)(2), as a
statement made in connection with an issue under consideration
or review by a government body. The trial court agreed and
granted the motion after also finding the plaintiff had not carried
his merits burden. Division Eight of this court affirmed the trial
court’s order, finding, as to the first step of the two-step anti-
SLAPP analysis, the representations in the audit report were
protected activity, and that the plaintiff’s claim for fraud arose
from that protected activity. (See Sugarman, at p. 173 [“[h]ere,
the audit report in the 10-K filing clearly ‘forms the basis for’
plaintiff’s fraudulent inducement claims and ‘“gives rise to [the
auditor’s] asserted liability”’”].)
Integral’s characterization of its location map and
application to the City for a permit as protected speech and
petitioning activity misses the point. Its location map, like the
bank’s 10-K filing with the SEC in Sugarman, may well be
speech or petitioning activity, but that is only part of the first-
step inquiry. The speech or petitioning activity must also be the
wrong alleged. Here, the City’s failure to apply its licensed-
14
surveyor rule equally to all applicants is the basis for the City’s
liability, not Integral’s submission of its map or any statement
contained in it.
b. The City’s failure to disqualify Integral from the
applicant pool
Tacitly acknowledging the City’s decision to approve
Integral’s application for a conditional use permit is not protected
activity subject to a special motion to strike, Integral argues
SweetFlower’s petition/complaint goes “well beyond attacking the
decision to approve” Integral’s permit application. SweetFlower’s
petition/complaint also includes a claim the City violated its rules
when it failed to disqualify Integral from eligibility after Integral
privately contacted City employees on multiple occasions during
the screening process. Its private contacts concerning its
application, Integral contends, is protected activity within the
meaning of section 425.16, subdivision (e)(2).
Even assuming Integral’s private inquiries to the City
during the initial screening process constituted statements made
in connection with an issue under consideration or review by a
government body (§ 425.16, subd. (e)(2)), that conduct is not the
basis for the City’s alleged liability. SweetFlower alleged the
City had a duty under its rules to disqualify any applicant that
privately contacted the City during the screening process. It is
the City’s acts (or omissions) of governance, its failure to
disqualify Integral, not Integral’s private inquiries, that underlie
SweetFlower’s claim against the City. (See generally Park,
supra, 2 Cal.5th at pp. 1060, 1063; Graffiti Protective, supra,
181 Cal.App.4th at p. 1224.)
15
c. SweetFlower’s request for relief
Relying on dicta in Rudisill v. California Coastal Com.
(2019) 35 Cal.App.5th 1062 (Rudisill), a case decided by Division
Two of this court, Integral argues SweetFlower’s request for an
injunction barring Integral from using an invalid conditional use
permit to obtain further permits is a direct attack on Integral’s
petitioning activity that subjects that “claim” to a special motion
to strike. In Rudisill petitioners sought a writ of mandate
directed to the City of Los Angeles and the California Coastal
Commission, challenging various permit decisions and naming
several real property developers as real parties in interests. The
developers filed a special motion to strike pursuant to section
425.16. The superior court denied the motion, ruling the petition
for writ of mandate was directed to government decisionmaking,
not the protected activity of the developers in seeking the
permits. The superior court also sanctioned the developers for
filing a frivolous anti-SLAPP motion, concluding any reasonable
attorney would have recognized that the writ petition concerned
government decisionmaking, not the protected activities of the
developers. (Id. at p. 1069.)
In their appeal from the sanctions order (the developers did
not appeal the order denying their anti-SLAPP motion), the
developers argued their special motion to strike was not frivolous
because they reasonably believed, based on some of the
allegations in the petition relating to their piecemeal methods to
obtain approvals, the mandamus action had asserted a claim
against them for their protected conduct. The Rudisill court held
the motion was not frivolous, the only issue before it. In dicta
supporting the superior court’s ruling denying the special motion
to strike, the Rudisill court also observed, in the language
16
Integral emphasizes, that the petitions for writ of mandate did
not seek an order directly affecting the developers’ participation
in the government process “such as, for example, an order
precluding [the developers] from submitting any further
permits[].” (Rudisill, supra, 35 Cal.App.5th at p. 1075.)
Integral argues that, by seeking an injunction barring
Integral from obtaining additional permits based on an invalid
conditional use permit, SweetFlower has alleged the very claim
the Rudisill court suggested would be subject to a special motion
to strike. Integral reads too much into language that simply
recognizes claims of wrongdoing directed to blocking petitioning
activity could be subject to a special motion to strike. Here,
SweetFlower’s request for an injunction, even if directed to
Integral,7 is not based on Integral’s alleged liability. (See Bonni,
supra, 11 Cal.5th at p. 1012 [when considering whether a claim
arises from protected speech or petitioning activity within the
meaning of section 425.16, the focus is on the “‘“acts on which
liability is based”’”].) The request for a remedy alone,
unsupported by a claim for liability, may well be subject to some
other challenge,8 but it does not create a claim where there is not
one, let alone subject the remedy to a special motion to strike.
(See Guessous v. Chrome Hearts, LLC (2009) 179 Cal.App.4th
1177, 1187 [anti-SLAPP motion is properly directed to a cause of
7
SweetFlower has now clarified its request for an injunction
is directed to the City only, not to Integral.
8
SweetFlower’s request for injunctive relief, to the extent it
encompasses Integral’s activities without any concomitant
allegations of Integral’s liability, is certainly questionable and
may well be an appropriate target of a traditional motion to
strike by Integral.
17
action, not the relief sought; “‘[i]njunctive relief is a remedy, not a
cause of action’”]; Marlin v. Aimco Venezia, LLC (2007)
9
154 Cal.App.4th 154, 162 [same].)
In sum, Integral did not carry its threshold burden to
demonstrate SweetFlower’s claims arose from protected activity
under section 425.16. Accordingly, the trial court did not err in
denying the special motion to strike.
DISPOSITION
The trial court’s order denying Integral’s special motion to
strike is affirmed. SweetFlower is to recover its costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
9
Although Guessous v. Chrome Hearts, supra,
179 Cal.App.4th 1177, and this division’s opinion in Marlin v.
Aimco Venezia, LLC, supra, 154 Cal.App.4th 154, were decided
before Baral, supra, 1 Cal.5th 376, the distinction in those cases
between the wrong alleged and the remedy sought remains valid
post-Baral: It is the claim, not the remedy, to which an anti-
SLAPP motion is properly directed. (See Baral, at p. 395 [anti-
SLAPP motion is properly directed to “allegations of protected
activity that are asserted as grounds for relief”; “[t]he targeted
claim must amount to a ‘cause of action’ in the sense that it is
alleged to justify a remedy’”], italics omitted.)
18