In the

Court of Appeal
of the

State of California
FOURTH APPELATE DISTRICT
DIVISION ONE

D072525

LYNCH PARTNERS, LLC

Plaintiff/Respondent

Received by Fourth District Court of Appeal, Division One

v.

ORACLE,
Defendant and Appellant.

APPEAL FROM THE SUPERIOR COURT OF SAN DIEGO COUNTY

HONORABLE EARL H. MAAS, III ⋅ NO. 37-2016-00033559-CU-CO-NC

RESPONDENT’S BRIEF

Daniel E. Marshall, Esq. [SBN 151328]

MARSHALL LAW
SDCCU BLDG.
3180 University Avenue, Suite 250
San Diego, CA 92104
(619) 993-5778 Telephone
(619) 374-7396 Facsimile
Attorneys for Respondent, Lynch Partners, LLC
 In the
Court of Appeal
of the
State of California

CERTIFICATE OF INTEREST ENTITIES OR PERSONS

Court of Appeal Case No.: D072525 .

Case Name: Lynch Partners, LLC et al. v. Oracle .

X There are no interested entities or parties to list in this Certificate per California Rules of
Court, 8.208

Interested entities or parties are listed below:

Name of Interested Entity or Person Nature of Interest

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.

s/ Daniel Marshall, Esq.

Signature of Attorney/Party Submitting Form

Daniel E. Marshall, Esq.

Printed Name

3180 University Avenue, Suite 250

San Diego, CA 92104
Address

Party Represented: Respondent Lynch Partners, LLC .

State Bar No.: 151328

1
Table of Contents
CERTIFICATE OF INTEREST ENTITIES OR PERSONS .................................................. 1
I. Nature of Action ....................................................................................................................... 6
II State of The Pleadings in This Action ..................................................................................... 6
III Appellant Filed a Non-Conforming Brief ........................................................................... 7
IV Order Appealed From ............................................................................................................ 8
V Statement of Appealability ...................................................................................................... 8
VI SUMMARY OF ARGUMENT ............................................................................................ 8
The Gravamen of The Cause of Action Were Anticipatory Breaches ..................... 8
Respondent Has the Probability of Prevailing on It’s Claim .................................. 10
VII Standard of Review ............................................................................................................. 10
VIII Scope of Review .................................................................................................................. 11
IX Factual Statement .................................................................................................................... 11
Anticipatory Breach No. 1- August 12, 2016 Cancellation Letter ................................ 11
Anticipatory Breach No. 2- August 13, 2016 Cancellation Notice ............................... 12
Third Breach – Failure to Pay Rent at Beginning of September ................................... 12
September 7th Letter Put Appellant Personally on Notice of Prior Breaches................ 13
Reason for Lawsuit ........................................................................................................ 13
X LEGAL ARGUMENT.............................................................................................................. 13
A. Appellant’s Burden to Establish Claim Arises from Protected Activity................. 13
B. The Gravamen of Respondent’s Claim Does Not Rely on Petitioning Activity and Is Not
Based Upon An Act In Furtherance Of Respondent’s Right Of Petition...................... 14
1. Cause Of Action Is Based Upon Premature Cancellations Of Lease...................... 15
Anticipatory Breach No. 1- August 12, 2016 Cancellation Letter ....................................... 16
Anticipatory Breach No. 2- August 13, 2016 Cancellation Notice ..................................... 17
Third Breach – Failure To Pay Rent At Beginning Of September ...................................... 18
2. September 7th Letter Put Appellant Personally On Notice Of Prior Breaches ....... 18
3. Triggering a Petitioning Activity Does Not Equate With Arising From ................ 19
4. Appellant’s Main Case Of Neville v. Chudacoff Is Distinguishable ..................... 20
5. Letter Was Not Pled As The Single “Wrongful Act” ............................................. 21
6. Respondent Did Not Confirm Letter Was Sole Act Breaching Agreement............ 22
(a) Interrogatory Responses Are Not Judicial Admissions Of Respondent..................... 23
(b) Interrogatories Were Served On A Non-Party To The Action And Are Invalid ........ 24
2
 (c) Discovery Was Served Prior To First Amended Complaint Filing ................................ 24
(d) Deposition Testimony Establishes Cancellation Notices Testified About Was Not The
September 7th Letter ............................................................................................................. 25
(i) August 12, 2016 Cancellation Letter Testimony........................................................ 26
(ii) August 13, 2016 Cancellation Form Testimony......................................................... 26
5) Baral v. Schnitt Criteria Have Not Been Established For Striking Particular Allegations
27
a. Reliance Upon Baral v. Schnitt Not Argued In Appellant’s Trial Court Brief ................ 27
C Respondent Has The Probability Of Prevailing On It’s Claim................................ 28
1. Prima Facie Case Of Anticipatory Breach Will Be Proven At Trial........................... 28
2. Respondent Is Proper Party ......................................................................................... 29
3. Appellant Owed Rents On September 7, 2016 ............................................................ 30
4. Jennifer Barnes Was A Licensed Real Estate Agent For Respondent ........................ 30
5. Litigation Privilege Does Not Bar Claim Or Probability Of Prevailing ..................... 31
6. Attorney Fees Should Not Be Granted To Appellant .................................................. 31
CONCLUSION ........................................................................................................................... 32
CERTIFICATE OF WORD COUNT .......................................................................................... 33
PROOF OF SERVICE BY MAIL and Electronic Service ..................................................... 34

3
Cases

Albertson v. Raboff (1956) 46 Cal.2d 375 ................................................................................... 30

Baral v. Schnitt (2016) 1 Cal. 5th 376 .......................................................................................... 26

Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157 .............................................................. 30
Birkner v. Lam (2007) 156 Cal.App.4th 275, ............................................................................... 30
Blackburn v. Brady (2004) 116 Cal. App. 4th 670, 676. ................................................................. 9
Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036 ................................................ 12
Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 ............................ 13, 27

City of Cotati v. Cashman (2002) 29 Cal. 4th 69, ................................................................... 13, 14

City of Riverside v. Stansbury (2007) 155 Cal. App. 4th 728 ....................................................... 13
Clark v. Mazgani supra 170 Cal. App. 4th at 1286 .................................................................... 13
Color-Vue Inc. v. Abrams(1996) 44 Cal. App. 4th 1599 ............................................................... 29

Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359 ........................................ 30

Equilon Enterprises v. Consumer Cause Inc. (2002) 29 Cal. 4th 53 ............................................ 21

Gallimore v State Farm Fire & Casualty Ins. Co. 102 Cal. App. 4th 1388.................................. 18
Garcia v. McCutchen (1997)16 Cal. 4th 469,698 ......................................................................... 26

Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921 .. 18
Kendall v. Allied Investigations Inc. (1988) 197 Cal. App. 3d 619 ............................................. 10

Marlin v. Aimco Venezia LLC 154 Cal. App. 4th 154 ................................................................. 13
Marlin v. Aimco Venezia LLC (2007) 154 Cal. App. 4th 154 ....................................................... 13
Martin v. Inland Empire Utilities Agency (2011) 198 Cal. App. 4th 61 ..................................... 21
Martinez v. Metabolife International Inc. (2003) 113 Cal. App. 4th 181 ............................... 13, 21
McGarry v. University of San Diego (2007) 154 Cal. App. 4th 97.............................................. 24

Navellier v. Sletten (2002) 29 Cal. 4th 82, .............................................................................. 12, 27

Neville v. Chudacoff (2008) 160 Cal. App. 4th 1255 ........................................................ 9, 19, 30

Oasis v. West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 820. ............................................. 9
Okorie v. Los Angeles Unified School District (2017) 14 Cal. App. 5th 574 ............................... 27

Park v. Board of Trustees Of The California State University (2017) 2 Cal. 5th 1057 ................ 14
Ramona Unified School District v. Tsiknas (2005) 135 Cal. App. 4th 510 .................................. 13

Silberg v. Anderson (1990) 50 Cal. 3d 20 .................................................................................... 30

4
Statutes

California Code of Civ. Proc. Sect. 2020.10(a). ........................................................................... 23

California Code of Civil Procedure § 425.16 ................................................................... 12, 13, 27
Civil Code Sect. 47 ....................................................................................................................... 30

5
I. Nature of Action
This action is based upon premature cancellation of the lease by Appellant. These
anticipatory breaches occurred on August 12th and 13th of 2016. It is also based upon a failure to
pay rent or quit on September 1, 2016 for the month of September. Appellant had agreed to this
in the body of the lease and separately by a signed addendum (1 CT 223) (7 CT 1379).

The residential lease was for the premises located at 6269 San Elio, Rancho Santa Fe, CA
92067. The lease included 3.31 outlying acres on the lot. Nine-thousand dollars ($9,000) was the
monthly rental amount. The lease and its addendum were separately executed on July 29, 2016,
by both parties. The lease term commenced on August 16, 2016, upon which date Appellant was
entitled to possession (1 CT 223-28) (Lease attached to First Amended Complaint)).

II State of The Pleadings in This Action

The complaint was for breach of contract with a single cause of action. It was filed on
September 26, 2016 by a Lynch Partners Inc. This business entity never existed. On November
28, 2016, the court approved an amendment to complaint substituting in LYNCH PARTNERS
LLC as the new Plaintiff (1 CT 116). Lynch Partners Inc. no longer appeared in the pleadings
and was not a party to the action thereafter (California Code of Civil Procedure (“CCP”) Sect.
473 (a)(1)).

This amendment was ignored by Appellant throughout the course of the litigation. The
court denied a demurrer to the first amended complaint on March 24, 2017. The basis was the
amendment to the complaint replacing the corporation with LYNCH PARTNERS LLC, the
Respondent (5 CT 1066). Appellant continued to ignore the amendment and ruling. The court
denied a discovery motion for this sole reason (CT 8 1662 at ¶ 2). This ruling was made on the
same day as the anti-SLAPP motion denial. These rulings are relevant to this motion because
they nullify the argument of Appellant that Appellant made judicial admissions in discovery

6
responses (AOB 29). Judicial notice was taken by the court of this amendment to the complaint
on March 24, 2017 (5 CT 1066).

On January 23, 2017, LYNCH PARTNERS LLC filed a First Amended Complaint (1
CT 219). On March 24, 2017, the trial court denied ORACLE’S demurrer to this First Amended
Complaint. The court noted that Lynch Partners Inc. name had been corrected to LYNCH
PARTNERS LLC. ORACLE’S special demurrer for misjoinder and for uncertainty was also
overruled (5 CT 1066). This tentative ruling was adopted as the Order of the Court at the
demurrer hearing held on March 24, 2017. ORACLE’s Motion to Strike the First Amended
Complaint was also denied (5 CT 1065).

The First Amended Complaint is the operative pleading that is the subject of this Anti-SLAPP
motion. The First Amended Complaint did not add any causes of action. Breach of Contract
remained the plaintiff’s sole cause of action throughout this litigation (1 CT 219-221). The
breach of contract cause of action is based upon the three actions constituting anticipatory breach
of the lease by Appellant. The form of the pleading is based upon CACI jury instruction number
324.

On September 29, 2016, Appellant filed a cross-complaint with twelve (12) causes of
action, including one for Racketeering and Corrupt Influences (1 CT 29-52). The cross-
complaint was amended once (7 CT 1465). The amended cross-complaint and cross-action are
not involved with or the subject of this appeal.

III Appellant Filed a Non-Conforming Brief

Appellant’s brief violates California Rule of Court 8.204(a)(2). The brief fails to state the
nature of the action, the relief sought in the trial court, and in particular the order appealed from.
It also violates California Rule of Court 8.204(a)(B) for failure to include a statement of the
order appealed from and any statement of appealability. The court has the inherent authority to

7
strike the appellant’s brief pursuant to California Rule of Court 8.204 (e)(2)(B), or take other
measures. Without waiving objections, Respondent will provide its own statement of nature of
action, order appealed from and statement of appealability.

IV Order Appealed From

On June 9, 2017, Judge Earl H. Maas, III, denied Appellant’s special Anti-Slapp Motion to
Strike the First Amended Complaint Judge Maas included in ruling his reasons this was not an
Anti-SLAPP action in this Order (8 CT 1665-66).

V Statement of Appealability
An order denying an anti-SLAPP (strategic lawsuit against public participation) motion is
immediately appealable (Code of Civil Procedure sections 425.16, subdivision (i)) Code of Civil
Procedure section 904.1, subd. (a) (13).

VI SUMMARY OF ARGUMENT

The Gravamen of The Cause of Action Were Anticipatory Breaches

On August 12th and 13th of 2016 Appellant committed actions that constituted
anticipatory of the lease entered on July 29, 2016 with a commencement date later that month of
August 16, 2016. She also failed to pay rents due on September 1, 2016 as agreed to in the lease
and by separate signed addendum (1 CT 223-28) (Lease attached to First Amended Complaint)).

On January 23, 2017, Respondent LYNCH PARTNERS LLC filed a First Amended
Complaint (1 CT 219). The First Amended Complaint is the operative pleading that is the
subject of this Anti-SLAPP motion. The First Amended Complaint did not add any causes of
action. Breach of Contract remained the plaintiff’s sole cause of action throughout this litigation
(1 CT 219-221). The form of the pleading is based upon CACI jury instruction number 324.

8
 This lawsuit was filed on August 24, 2016. The reason for the filing of the lawsuit were
the 1) cancellation letter of August 12, 2016; 2) formal notice of cancellation on August 13, 2016;
3) failure to pay rents after service of 3-day notice to pay rent or quit.

California Code of Civil Procedure § 425.16 requires a two-step process to determine

whether an action is a Strategic Lawsuit Against Public Participation (“SLAPP”). Only if a
cause of action satisfies both prongs of the anti-SLAPP statute, namely 1) arises from protected
speech or petitioning; and 2) lacks even minimal merit can it be stricken Navellier v. Sletten
(2002) 29 Cal. 4th 82, 89.

The principal thrust or gravamen of the cause of action are the breach of contract actions
independent of the attorney’s letter. The breach of contract action is replete with conduct and
communications independent of the letter. As to the letter, the pleading makes only two references.
Even if the letter triggered the present action that does not establish it arose from the letter
Gallimore v State Farm Fire & Casualty Ins. Co. 102 Cal. App. 4th 1388, the court stated.

The Respondent relies too heavily upon Neville v. Chudacoff (2008) 160 Cal. App. 4th
1255 (AOB 25-28). This case is distinguishable in many respects. For one the appellant’s attorneys
are not parties to this action. It was also a defamation claim 160 Cal. App. 4th at 1260. There are
more reasons.

Respondent’s discovery responses are not judicial admissions for several reasons: they
were not served on or responded to by Respondent; They were served on a non-party and
violated California Code of Civ. Proc. Sect. 2020.10(a). Deposition testimony of Co-Defendant
Hal Lynch contradicts the arguments of Appellant.

Appellant is barred from relying upon Baral v. Schnitt (2016) 1 Cal. 5th 376 (5 CT 1071-
1090). Because she failed to include it in her underlying memorandum. Regardless Appellant
applies Baral to the first prong where the case was only discussing the second prong of SLAPP.

In Okorie v. Los Angeles Unified School District (2017) 14 Cal. App. 5th 574 the movant
sought to strike the entire complaint that consisted of more than one cause of action. It’s holding
should be confined to those types of pleadings and cases.

9
 Respondent Has the Probability of Prevailing on It’s Claim

Plaintiff in the present action can establish the probability of prevailing as is only
required if the defendant establishes the first prong (§ 425.16, subd. (b)). The claim does not
lack merit can it be stricken. This is sufficient to meet their burden Navellier v. Sletten (2002)
29 Cal. 4th 82, 89.

Appellant’s three actions constituted anticipatory breach of contract. The existence of

these documents is either on the record are affirmed in the declaration of Appellant or the
September 7th, 2016 letter putting Respondent on notice of these breaches. Respondent is a proper
party and has capacity to sue and standing to bring this action. This was previously decided by
the trial court and is not basis of appeal.

Litigation Privilege Does Not Bar Claim or Probability of Prevailing

Appellant jettisons mentioning her Prong I case of Neville v. Chudacoff, (2008)160 Cal
App. 4th 1255. Appellant’s key cases were not merely breach of contract actions. Other causes of
action were involved in the decision. Each involved interactions of the plaintiff with government
agencies.

The Respondent’s case is a garden variety breach of contract action. It is the Appellant
who retaliated by bringing a pleading with twelve causes of action including an alleged RICO
violation. It is her action that is subject to the privilege. Attorney fees can only be awarded if
the Appellant prevails. The basis, scope and amount are within the discretion of the trial court.
Respondent requests attorney fees under the authority of 425.16 (c)(1) as this appeal is and
underlying motion is frivolous or is solely been filed in the trial court and appealed to this court
for purposes of unnecessary delay.

VII Standard of Review

A trial court’s ruling on an Anti-SLAPP motion is reviewed “de novo” Oasis v. West Realty,
LLC v. Goldman (2011) 51 Cal. 4th 811, 820. Whether section 425.16 applies to a pleading is
also subject to the same standard of review Blackburn v. Brady (2004) 116 Cal. App. 4th 670,
676.

10
VIII Scope of Review
Appellant’s Notice of Record on Appeal designated one-hundred and six (106)
documents. She cites to these throughout her opening brief. These go significantly beyond the
moving, opposition and affidavits directly associated with the anti-SLAPP motion. This court
has the ability to disregard documents improperly placed on the record and is herein requested to
exercise such discretion Kendall v. Allied Investigations Inc. (1988) 197 Cal. App. 3d 619, 625.
An example is Appellant’s motion to strike Respondent’s Answer (1 CT 147-156). Respondent
will endeavor to limit their references to relevant documents, except when necessary to respond
to arguments of Appellant using such documents.

IX Factual Statement
Respondent is the owner of the residence located at 6269 San Elijo in Rancho Santa Fe,
CA 92067. The residence is located on 3.31 acres of land and is appraised at 3.2 million dollars.
Tenants have full access to the grounds including a tennis court (7 CT 1554) (7 CT 1560). In July
2016, Respondent advertised the premises for rent at the rate of $9,000 dollars monthly (7 CT
1400). On July 27, 2016, Appellant’s agent Patti Phillips sent an application package to
Respondent’s real estate agent Jennifer Barnes (7 CT 1389).

Two days later July 29, 2016, Appellant and Respondent signed a one-year lease for the
property (1 CT 223-228). The monthly rent was $9,000 dollars. On or about August 1, 2016,
Appellant paid $20,645.12 dollars (7 CT 1384) as required on page 1 of the lease. This included
an overpayment of $910.88. It was agreed that this would be applied to the rents due on September
1, 2016 (7 CT 1379, 1389). These monies were paid after she had completed an inspection to
“determine its suitability” (7 CT 1389, 1400).

Anticipatory Breach No. 1- August 12, 2016 Cancellation Letter

On August 10, 2016, a walk-through was conducted by Appellant and her agent Ms. Phillips (7
CT 1389). On August 12, 2016, Appellant cancelled the lease in the form of a written letter (7 CT
1402 at par. 12). This occurred four (4) days before the commencement date of August 16, 2016.

11
 The lease did not require Respondent to deliver possession of the premises until its
commencement date of August 16, 2016. Before signing the lease reached Appellant and Jennifer
Barnes reached an oral agreement that Respondent had until the commencement date to fix the
listed defects set forth on page 2 of her declaration in support of the anti-SLAPP motion. (7 CT
1400). In paragraph 28 of the lease Respondent had five (5) days after a unilateral notice was
served. This notice was required to have been served on or after the commencement date deliver
possession (1 CT 226) in a good and clean condition. Paragraph 28, in its entirety, is set forth
below in the Argument section of this brief.

Anticipatory Breach No. 2- August 13, 2016 Cancellation Notice

On August 13, 2016, Appellant personally signed a formal California Association of Realtors
cancellation form (7 CT 1385). Appellant’s declaration only addresses the August 12, 2016, notice
(7 CT 1403 at par. 13). In paragraph 16 of her declaration she once again references only the
August 12, 2016 cancellation of lease (7 CT 1403). The only reference to this notice is stated in
the September 7th, 2016, letter (7 CT 1390). This was sent to Jennifer Barnes and not Respondent.

Third Breach – Failure to Pay Rent at Beginning of September

As of September 2, 2016, Appellant had failed to pay full rents for September 2016. She
had agreed to do the same in the lease and in its addendum.

The lease required rent payments on or before the first of the month (1 CT 223). Appellant
had separately agreed to pay the September 2016 rents on the first in the lease addendum (7
CT 1379). At the same time, she paid the security deposit, she made a payment covering part
of September 2016.

On September 2, 2016, Appellant was served a 3-day notice to pay rent or quit by a
registered process server (7 CT 1380-1381). The September 7th, 2016 letter from her attorney
was the first notice given to Respondent that Appellant was not going to cure this breach of
lease and addendum (7 CT 1390-91). The attorney’s letter notified Appellant that she had in
fact relinquished legal possession of the premises.

12
September 7th Letter Put Appellant Personally on Notice of Prior Breaches

The three-day notice period ended on September 7, 2016. It had been served on a Saturday and
Monday was Labor Day. The third business day after service was September the 7th. The letter
was the first notice that Respondent was not paying the balance of rents for September.

Reason for Lawsuit

This lawsuit was filed on August 24, 2016. The reason for the filing of the lawsuit were the 1)
cancellation letter of August 12, 2016; 2) formal notice of cancellation on August 13, 2016; 3)
failure to pay rents after service of 3-day notice to pay rent or quit.

X LEGAL ARGUMENT

A. Appellant’s Burden to Establish Claim Arises from Protected Activity

California Code of Civil Procedure § 425.16 requires a two-step process to determine

whether an action is a Strategic Lawsuit Against Public Participation (“SLAPP”). Only if a
cause of action satisfies both prongs of the anti-SLAPP statute, namely 1) arises from protected
speech or petitioning; and 2) lacks even minimal merit can it be stricken Navellier v. Sletten
(2002) 29 Cal. 4th 82, 89.

First, the defendant must meet their burden of showing that the challenged cause of action
arises from protected activity. (§ 425.16, subd. (b) (1).) Appellant, the defendant, must
demonstrate that the act underlying plaintiff’s cause of action clearly fits one of the categories set
forth in (§ 425.16, subd. (e)). Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036,
1043. In her moving papers she limits 1 the motion to (§ 425.16, subd. (e)(2)) (5 CT 1084). Code
of Civil Procedure (§ 425.16, subd. (e)(2) states:

1
In her appellate brief she cites to 425. 16 (e )(4)(AOB 25). The general rule is where an argument
raised in her moving papers she cannot now base her motion and appeal on this additional
subsection Varian Medical Systems v. Delfino 113 Cal. App. 4th 273, 293.

13
(e) 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 about a public issue" includes: …. (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…,”

The Appellant has the burden to establish that the principal thrust or gravamen of the
cause of action is the protected activity Ramona Unified School District v. Tsiknas (2005) 135
Cal. App. 4th 510, 519-522. To determine this the court must identify the allegedly “wrongful
and injury producing conduct” that forms the foundation of the claim Martinez v. Metabolife
International Inc. (2003) 113 Cal. App. 4th 181, 189. The protected activity must be the cause of
plaintiff’s complaint Marlin v. Aimco Venezia LLC 154 Cal. App. 4th 154.

Only if the court determines the defendant has met this burden that such a showing has been
made then the burden shifts to the plaintiff to establish the probability of prevailing (§ 425.16,
subd. (b)). City of Riverside v. Stansbury (2007) 155 Cal. App. 4th 728, 733. To meet the burden
of the second prong of the anti-SLAPP statute, the plaintiff need only show they have stated and
substantiated a legally sufficient claim, they do not yet have to prove their claim Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123.

B. The Gravamen of Respondent’s Claim Does Not Rely on Petitioning Activity and Is Not
Based Upon An Act In Furtherance Of Respondent’s Right Of Petition

One of the critical questions in determining whether or not a claim arises from protected
activity or right to petition is whether the cause of action is based upon the protected activity City
of Cotati v. Cashman (2002) 29 Cal. 4th 69, 78, Marlin v. Aimco Venezia LLC (2007) 154 Cal.
App. 4th 154. Clark v. Mazgani (2009) 170 Cal. App. 4th 1281. Both Marlin and Clark involved
landlord tenant disputes. In Clark even the [wrongful]eviction did not arise from the prior
unlawful detainer action Clark v. Mazgani supra 170 Cal. App. 4th at 1286. A demand letter
involves much less petitioning activity than does the filing of a civil lawsuit.

On September 7, 2016, Appellant’s attorney did send a letter addressed to “Lynch

Partners” (1 CT 1388-1392). The breach of contract action is replete with conduct and

14
communications independent of the letter. As to the letter, the pleading makes only two
references.

In ¶ BC-1 the pleading states “On September 7, 2016, she communicated she had relinquished
legal possession to the house through her attorney for the first time.

¶ BC-2 stated in small part “On 9/7/2016, by her attorney’s letter first put Plaintiff on notice of
the breaches. Including repudiation of the contract and refusal to comply with the rental
payments and term of the lease”.

The California Supreme Court has recently held that “A claim may only be struck if the
speech or petitioning activity itself is the wrong complained of, and not just the evidence of
liability or a step leading to some different act for which liability is asserted Park v. Board of
Trustees Of The California State University (2017) 2 Cal. 5th 1057, 1060. The wrong complained
of is the early termination of the lease that occurred prior to the commencement date. The
September 7th attorney letter was and is at most evidence of liability. It describes different acts for
which liability is asserted.

On September 24, 2016, the present action was filed. In City of Cotati v. Cashman (2002)
29 Cal. 4th 69, the court stated as follows: “the mere fact an action was filed after protected
activity took place does not mean it arose from that activity.” (Id. at pp. 76-77.) The Supreme
Court went further to state that arising from does not mean in response to. They believed this
would produce an absurd result Ibid at 77. Instead the court stated “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”. City of Cotati v. Cashman supra 29 Cal. 4th at 78.

1. Cause Of Action Is Based Upon Premature Cancellations Of Lease

In Appellant’s declaration in support of the anti-SLAPP motion she admits she cancelled the
lease on August 12, 2016. The written notice attributed the cancellation to poor conditions of
the house as well as a commission dispute (7 CT 1402). This occurred 4 days before the

15
commencement date of August 16, 2016 ( 1 CT 223). The record also reflects she signed a
cancellation of lease on August 13, 2016 (7 CT 1385). This key document was part of Exhibit I
attached to Declaration of Daniel Watts made part of the appellate record in paragraph 4 (c ) on
last page of Appellant’s Notice of Designation.

The September 7, 2016, letter also states that Appellant cancelled the lease on August 12,
2016, without having taken possession (7 CT 1388-1390). It also refers to a second more
formal cancellation form ( 7 CT 1385 ) The core-harm producing conduct are these two
efforts to cancel the lease unilaterally, not the letter. The reasons for the cancellation are
Appellant’s reasons as communicated on August 12, 2016 in her agent’s letter. The existence
and contents of the cancellation letter are affirmed in Appellant’s declaration (7 CT 1402,
1403) .

The CACI jury instruction number 324 entitled Anticipatory Breach states

A party can breach, or break, a contract before performance is required by clearly and positively
indicating by words and conduct, that he or she will not or cannot meet the requirements of the
contract.

If [name of plaintiff] proves that [he/she/it] would have been able to fulfill the terms of the contract
and that [name of defendant] clearly and positively indicated, by words or conduct, that [he/she/it]
would not or could not meet the contract requirements, then [name of defendant] breached the
contract.

This is what was stated as in ¶ BC-2 as the “breach of the agreement”.

Defendant clearly and positively indicating both by her words and conduct that she would not meet
the contract requirements. Defendant’s actions constitute ‘early termination’ as set forth in par.
30 of the Exhibit A lease. She clearly and positively by her words indicated she would not be
honoring the terms of the contract.

Anticipatory Breach No. 1- August 12, 2016 Cancellation Letter

On August 10, 2016, a walk-through was conducted by Appellant and her agent Ms. Phillips (7
CT 1389). On August 12, 2016, Appellant cancelled the lease in the form of a written letter (7 CT
1402 at par. 12). This occurred four (4) days before the commencement date of August 16, 2016.
The written notice attributed the cancellation to poor conditions of the house and a commission
dispute (7 CT 1402). Appellant’s declaration clearly show that Jennifer Barnes was in constant
communication with Appellant and her agent. Despite this fact, Appellant cancelled the lease
16
within days of learning of the problems and prior to the commencement date in express violation
of paragraph 28 of the lease set forth below.

Tenant is not in possession of the premises. If Landlord is unable to deliver possession of

premises on Commencement Date such Date shall be extended to the date on which possession is
made available to Tenant. If Landlord is unable to deliver possession within 5 ( or . .) calendar
days after agreed Commencement Date, Tenant may terminate the Agreement by giving written
notice to Landlord and shall be refunded all Rent and security deposit paid. Possession is deemed
terminated when Tenant has returned all keys to the premises to Landlord. (1 CT 223)

Before signing the lease reached Appellant and Jennifer Barnes had also reached an oral
agreement that Respondent had until the commencement date to fix the listed defects set forth on
page 2 of Appellant’s declaration in support of the anti-SLAPP motion (7 CT 1400).

Under the terms of the lease Respondent had even more time than August 16, 2016, to fix any
conditions that formed the basis of the cancellation notice. The reason Appellant sent the August
12, 2016, cancellation letter were the poor conditions of the house and “suitable” internet service,
an a commission dispute (7 CT 1402). Respondent had (5) days from the date of any written
notice after the commencement date, or August 21, 2016, to deliver possession (1 CT 226).

The notice was premature. It was delivered prior to the commencement date in breach of the
oral agreement between Jennifer Barnes and Appellant prior to the signing of the lease. A
premature notice does not comply with paragraph 28. The first notice that complied with paragraph
28 was the September 7th letter.

Anticipatory Breach No. 2- August 13, 2016 Cancellation Notice

On August 13, 2016, Appellant personally signed a formal California Association of Realtors
cancellation form (7 CT 1385). Appellant’s declaration only addresses the August 12, 2016, notice
( 7 CT 1403 at par. 13). In paragraph 16 of her declaration she once again references only the
August 12, 2016 cancellation of lease (7 CT 1403). The only reference to this notice is stated in
the September 7th 2016, letter (7 CT 1390). This was sent to Jennifer Barnes and not Respondent.

On page 149 of Harold Lynch’s deposition)he made clear what he considered a cancellation
notice. It is clear that had not been provided a formal notice (6 CT 1354). The September 7th letter

17
was the first notice of this formal cancellation document. The only way to reconcile these facts
is that Jennifer Barnes received the August 13, 2016, notice but it was not provided to Harold
Lynch. This explains his pleading in ¶BC-2.

The September 7, 2016, letter first put him on notice of the earlier formal cancellation that
breached the lease and repudiated the contract. This formal notice, not the cancellation letter, is
what put him on notice. The earlier letter in his mind when he drafted the pleading “doesn’t count”
(6 CT 1354). It was of course still a breach because it was sent to his agent as set forth in the letter.

Third Breach – Failure To Pay Rent At Beginning Of September

After the commencement date passed, Appellant still had a duty to pay rents for September
1, 2016, because her prior notices were premature and therefore invalid. They did not change
the legal status of the parties in respect to the lease or the obligation to pay future rent. The
lease required rent payments on or before the first of the month (1 CT 223). Appellant had
separately agreed to pay the September 2016 rents on the first in the lease addendum ( 7 CT
1379). At the same time she paid the security deposit, she made a payment covering part of
September 2016. She affirmed by her action she owed September rents. (7 CT 1401).

On September 2, 2016, Appellant was served a 3-day notice to pay rent or quit by a
registered process server (7 CT 1380-1381). The September 7th, 2016 letter from her attorney
was the first notice given to Respondent that Appellant was not going to cure this breach of
lease and addendum (7 CT 1390-91). The attorney’s letter notified Appellant that she had in
fact relinquished legal possession of the premises. This is what is pled in ¶BC-1 of the First
Amended Complaint.

2. September 7th Letter Put Appellant Personally On Notice Of Prior Breaches

The three day notice period ended on September 7, 2016. It had been served on a Saturday and
Monday was Labor Day. The third business day after service was September the 7th. The letter
was the first notice that was not paying the balance of rents for September. Therefore, the deadline
to provide an accounting was September 28, 2017 and not September 2, 2016, as is asserted in the
letter.

18
 The letter is not the basis for the lawsuit. The premature cancellation notice form the basis of
the lawsuit. The failure to pay rents and the notice that the 3-day notice would not be cured caused
a legal forfeiture of the lease California Code of Civil Procedure 1174 (c ). The statutory right to
a 3-day notice cannot be waived by the tenant (Civil Code section 1953(a)(3)(4)) (See discussion
below).

Without service of the 3-day notice, Appellant could have changed her mind and had a statutory
right to take possession, up to and including the date of filing this Respondent’s brief. The
September 7th letter notified Respondent that she had unilaterally cancelled the lease. It also gave
Respondent legal notice that the 3-day notice would not be cured and she had relinquished both
actual and legal possession. This is what is pled in the first amended complaint breach of contract
cause of action.

The cancellation notices sent prior to the commencement date were a breach of the lease
because no notice could unilaterally cancel the lease until after the commencement date. If the
cancellation notices could serve as a substitute for a valid notice, Respondent still had until August
21, 2016, pursuant to paragraph 28 of the lease to fix the alleged problems before Appellant could
cancel the lease.

3. Triggering a Petitioning Activity Does Not Equate With Arising From

In Gallimore v State Farm Fire & Casualty Ins. Co. 102 Cal. App. 4th 1388, the court stated
“that a cause of action arguably may have been 'triggered' by protected activity does not entail it
is one arising from such”[activity]. Id at 1398. Gallimore cited to the case of Kajima
Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921 which stated
that the submission of contract claims before litigation is not an act in furtherance of the right to
petition or free speech Id at 932.

In the present case, Appellant’s attorney letter itself recites various breaches of contract that
had allegedly occurred since August 12, 2016. It demands return of rents paid under the contract
and security deposit (7 CT 1388-1392). These are contract claims, different in kind but not in

19
the essence of the contractual claims of a business demanded prior to a lawsuit that formed the
basis of one of the causes of action sought to be stricken in Kajima Engineering case. Collection
attorneys regularly make demand letters seeking reimbursement for their clients for breach of
contract claims. These demand letters do not convert the letters into the harmful conduct just
because litigation is threatened. Otherwise, every person who owed money could simply use the
demand letter not to honor the contract.

The same is true in this case. Although not binding upon this court, this is the conclusion
reached by the Honorable Earl H. Maas III as stated in his ruling and order denying the anti-
SLAPP motion which is the subject of this appeal (8 CT 1165-66).

4. Appellant’s Main Case Of Neville v. Chudacoff Is Distinguishable

Appellant’s sole legal authority for the proposition that Respondent’s complaint and cause
of action arise from protected activity is Neville v. Chudacoff (2008) 160 Cal. App. 4th 1255
(AOB 25-28). This case is distinguishable in many respects. In Neville. the attorney who
drafted and sent the letter was a cross-defendant and the sole party who brought the successful
SLAPP motion . Appellant’s attorneys are not parties to this action.

Mr. Neville was an employee sued by his employer for misappropriation of client lists
and providing those lists to third parties in violation of the confidentiality clause in his
employment agreement. Neville cross-complained against his employer and their attorney Mr.
Chudacoff Ibid at 1259.

The factual basis of the cross-complaint arose from a letter sent to the employer
[Maxsecurity] customers stating among other items, Mr. Neville is in direct violation of an
employment and confidentiality agreement he had with Maxsecurity. The letter strongly
suggested that the customers should have no further business dealings at the risk of losing
revenue Neville cross-complained stating six causes of action including a claim for
defamation “arising from alleged ‘false accusations, representations, statements and comments”
made by Maxsecurity to its ‘existing and former customers impugning and maligning the
character and business reputation of [Neville]’ Neville v. Chudacoff supra. 160 Cal. App. 4th at
1260

20
 It is important that despite the header that states that the attorney met his burden that the
employee’s claim arose from protected activity the focused solely upon whether or not the letter
constituted protected activity standing alone under the anti-SLAPP statute . The court stated “
Neville’s sole contention on appeal is that Chudacoff failed to meet his threshold burden of
proving that the Letter was written “in connection with an issue under consideration or review by
a legislative, executive, or judicial body” as required by section 425.16, subdivision (e)(2)
Neville v. Chudacoff, supra 160 Cal App. 4th at 1262.

Because Neville conceded that all of his claims arose from the letter but he contended the
letter itself was not protected activity under SLAPP. Therefore, any holding should be limited to
the analysis that the letter was protected activity not that it “arose from protected activity”. That
is not the sole contention of this appeal. Respondent does not concede the point on whether or
not the September 7th was protected activity (See discussion below). However, even if it was
protected activity, the arguments raised in the brief establish it does not arise from this protected
activity.

5. Letter Was Not Pled As The Single “Wrongful Act”

At this stage of discovery, Respondent has identified three separate actions taken by
Appellant, that breached the lease prior to September 7, 2016. If this appeal is denied, Respondent
anticipates discovering even more.

These actions consist of the following:

a) Cancellation letter dated August 12, 2016, referenced throughout Appellant’s declaration
and emphasized in the September 7th letter ( 7 CT 1388, 1390);
b) Cancellation form signed by Appellant on August 13, 2016 referenced in the attorney’s
letter (7 CT 1390) and attached to Exhibit I of Daniel Watts declaration designated as part
of the appellate record (7 CT 1385).
c) Failure to pay full rents due for September 2016.

It is these three actions not her attorney’s letter that form the gravamen of the claim and
the basis for it’s filing of the present action. The attorney’s letter merely put Appellant on

21
 notice that these three actions and communications constituted a formal relinquishment of legal
possession. This was clearly evinced by Appellant’s failure to pay the balance of rents due
for September 2016 (1 CT 1390). The agreement to pay rents on this specific date was also
affirmed by Appellant in the separately signed addendum to the lease (7 CT 1379) also attached
to Appellant’s First Amended Cross-Complaint on the last page of Exhibit A. Appellant’s
failure to pay rent after service of Appellant’s 3-day notice itself was an act by omission in
breach of the lease. It was a specific breach of the addendum ( 7 CT 1379).

The September 7th letter was sent only 5 days after service of the 3 day notice. Appellant
admits that the notice was why she hired her attorneys (7 CT 1403) The attorney letter put
Respondent on notice that Appellant was not going to make the rental payment for September
as demanded in the notice. The above-listed three actions, not the letter, constituted a
repudiation of the lease and failure to meet its terms and conditions for the balance of the lease
(1 CT 1390).

This is what is alleged in ¶ BC-1 and ¶ BC-2 of the breach of contract cause of action. These
actions including failure to honor the term of the lease is stated clearly as the breach ¶ BC-2.
These actions are the “wrongful conduct” forming the basis and foundation of the claim and cause
of action These are the “injury producing conduct” pled in as pled in ¶ BC-4 These actions not
the letter are the core-injury producing conduct as described in Martinez v. Metabolife
International Inc. (2003) 113 Cal. App. 4th 181, 189.

6. Respondent Did Not Confirm Letter Was Sole Act Breaching Agreement

Affidavits may be submitted to assist the court in deciding whether an action is one arising
from Appellant’s rights of speech or petition Equilon Enterprises v. Consumer Cause Inc.
(2002) 29 Cal. 4th 53. However, producing such evidence by plaintiff is “aimed at meeting the
second prong of the anti-SLAPP statute” Martin v. Inland Empire Utilities Agency (2011) 198
Cal. App. 4th 611, 630.

22
 (a) Interrogatory Responses Are Not Judicial Admissions Of Respondent

On page 28 of her brief Appellant argues that solely on the basis of two interrogatory
responses the letter constituted a breach of contract ( AOB 28). On November 15, 2016,
Respondent LYNCH PARTNERS LLC became the plaintiff in this action. On December 15,
2016, APPELLANT served Special Interrogatories on Lynch Partners Inc. ( 6 CT 1222). On
December 15, 2016, Appellant served Form Interrogatories on Lynch Partners Inc. ( 6 CT 1271).
Respondent LYNCH PARTNERS LLC was never served special interrogatories or form
interrogatories.

Appellant continued to identify Lynch Partners Inc as the “plaintiff” 2 up to and including
June 9, 2017, the date of the SLAPP motion. Judge Maas denied Appellant’s discovery sanctions
motions as to Lynch Partners Inc. The court noted that “prior to the service of the discovery”
Respondent was substituted in as plaintiff. Lynch Partners Inc, a business entity that did not exist
(8 CT 1662).

The responses to special interrogatory #19 and #20 cannot be attributed as admissions by
Respondent because they were not served on Respondent. In fact, Respondent has never been
served special interrogatories or any other form of written discovery to date. Appellant’s
counsel Daniel Watts admitted in his declaration in support of the anti-SLAPP motion that
Respondent LYNCH PARTNERS LLC was never served interrogatories, and the cited
responses were not those of LYNCH PARTNERS LLC (6 CT 1093 at ¶ 2). The proof of
service reflects the same thing (6 CT 1222).

Daniel Watts went on to declare that “No company-not Lynch Partners LLC, Lynch
Enterprises, LLC, Lynch Partners Inc., or any other company responded to our special
interrogatories” (6 CT 1094 at ¶ 2). On the same page, he misidentifies the responses to special
interrogatory #19 as a response by the “plaintiff”. Since they never were served or responded to

2
Throughout the brief Appellant identifies “plaintiff” as other persons such as Harold
Lynch, particularly in this section regarding discovery responses. These deviate from her
definition at the beginning of her brief, and should be ignored as these are co-defendants.
They are not respondents as they are listed on the face page of the AOB as well.

23
 interrogatories this cannot be true. The above-argument equally applies to the form
interrogatory response to interrogatory number 50.2. It cannot serve as an admission as argued
in Appellant’s brief (AOB 29-30).

The Watts declaration admits that he never received responses from Respondent (6 CT 1095).
If Lynch Partners LLC did not respond, then this response could not be an admission by
Respondent. If it was not an admission attributable to Respondent then it should have little or no
bearing on the First Amended Complaint.

(b) Interrogatories Were Served On A Non-Party To The Action And Are Invalid

Appellant seeks to attribute responses to discovery served on Lynch Partners Inc. on

December 15, 2016, to Respondent (AB 16). Interrogatories cannot be served on non-parties
pursuant to California Code of Civ. Proc. Sect. 2020.10(a). The discovery method violated the
statute. Therefore, even though signed by Harold Lynch, they were improper and Appellant should
not be given any weight in the determination of the appeal, and they are certainly not judicial
admissions.

(c) Discovery Was Served Prior To First Amended Complaint Filing

Special Interrogatory No. 19 and 20, define COMPLAINT as the “operative complaint
filed by Plaintiff Lynch Partners Inc. in this action (6 CT 1094). As of December 15, 2016, the
operative pleading was still the Complaint, not the First Amended Complaint. These responses
could not then be admissions that the conduct was solely based on September 7, 2016 as pled in
the “COMPLAINT”.

The first amended complaint was not filed, nor served until January 23, 2017 ( 1 CT 1219). As
referenced in the state of the pleadings section, important content regarding the September 7,
2016, letter was changed in the First Amended Complaint. Appellant ignores the state of the
pleadings in her brief. She served a non-party. The responses are limited by her definition of the
pleading to those associated with the initial complaint. They have minimal effect on this appeal.

24
 It is only in the second prong where plaintiff must produce evidence of their probability of
prevailing, not the first prong McGarry v. University of San Diego (2007) 154 Cal. App. 4th 97,
108. Even in the second prong the court cannot weigh the evidence Id.

The three interrogatory responses were culled from voluminous amount of discovery responses
attached as exhibits to the Declaration of Daniel Watts that are on the record (See Appellant’s
Notice of Designation Of Record on Appeal paragraph 4(C ) attachment entitled additional
exhibits. Of particular importance is the Responses to Request for Admissions by Harold Lynch
attached as part of Exhibit E to Declaration of Daniel Watts (6 CT 1186-1204). These clearly
establish that the breaches did not include the September 7th, 2016, letter.

These three interrogatories are controverted by Harold Lynch’s declaration filed with the
Respondent’s opposition papers to the anti-SLAPP motion (7 CT 1533-1578). Finally, Appellant
omits clarifying testimony in Harold Lynch’s deposition testimony regarding the three actions of
Appellant that formed the basis of the complaint as set forth below.

(d) Deposition Testimony Establishes Cancellation Notices Testified About Was Not The
September 7th Letter

Appellant asserts the deposition testimony of Harold Lynch confirms that the pleading of
anticipatory breach is based upon the September 7th 2016, letter (See page 30 of AOB). This is an
inaccurate and misleading recitation of his testimony.

Harold Lynch first affirmed their had been words and conduct that APPELLANT had breached
the lease. The “words and conduct” which communicated the pled anticipatory breach were in
Lynch’s words “She sent a letter noting the fact that she would not move in” He was uncertain if
the September 7, 2016 letter, was the words and conduct pled in the complaint. He was also
uncertain of the date of the letter ( 6 CT 1322). ( Deposition of Harold Lynch on page 25, lines 11-
25 )

This is because there were at least two other written communications from Appellant and her
agent Patti Phillips that clearly communicated Appellant’ss intent to cancel the lease. The
complete deposition testimony make clear that one of these was in fact the August 12, 2016, letter

25
referenced on page 25 of his deposition and the same letter referred to in Appellant’s declaration
and the September 7th letter.

(i) August 12, 2016 Cancellation Letter Testimony

As established above, it is indisputable that on August 12, 2016, Appellant’s agent Patti
Phillips sent a letter to agent for LYNCH PARTNERS attempting to cancel the lease. The letter
lists various reasons for the cancellation. It also raises an issue of Patti Phillips as a reason for the
cancellation. This letter is part of the clerk’s transcript but omitted from the appellate record.
Concurrent to this brief Respondent has filed a motion to augment and add the letter to the record.

In his deposition Harold Lynch was asked if [Patti] Phillips “sent a letter saying that
Appellant wanted to cancel the lease around August 12,; is that right” ( 6 CT 1350). He testified
he received it on the 13th and requested that the letter be shown to him. Later he was shown an
Exhibit 15. It was not identified for the record by Appellant’s counsel, however it is clear from
his testimony this was the August 12, 2016 letter. Lynch stated he “think[s] it’s a cancellation
notice (6 CT 1351) Counsel for Appellant then reads the first paragraph.

The question irrefutably establishes that Exhibit 15 is the same letter. Watts read part of the
letter into the deposition record (6 CT 1352).

Q. In the first paragraph it says Due to multiple breaches, please present our cancellation of the
lease.

A. If that’s what she said, that was it .

Lynch was uncertain the September 7, 2016 letter was the document that clearly and
positively indicated by her words and conduct that she would not meet the contract requirements.
His testimony establishes these words and conduct referred to the August 12, 2016, letter from
Patti Phillips letter attached as exhibit 15 to his deposition (6 CT 1315)( 6 CT 1351).

(ii) August 13, 2016 Cancellation Form Testimony

Later in his testimony on page 149 of his deposition (6 CT 1354)he made clear what he considered
a cancellation notice, and it certainly did not describe the September 7th letter.

26
Q. What is an official cancellation notice to you?

A. There is one that’s part of the real estate division of the code that you can get. There is a
cancellation notice that’s very specific.

Q. So just telling you that she wanted to move—to cancel, that doesn’t count.

A. Doesn’t count.

On August 13, 2016, Appellant had signed a document entitled “CANCELLATION OF

CONTRACT RELEASE OF DEPOSIT AND CANCELLATION OF ESCROW (Emphasis in
original). This document was received by Jennifer Barnes and was responded to by Ms. Barnes
( 7 CT 1390).

5) Baral v. Schnitt Criteria Have Not Been Established For Striking Particular Allegations
a. Reliance Upon Baral v. Schnitt Not Argued In Appellant’s Trial Court Brief
The memorandum of points and authorities in support of her anti-SLAPP motion filed on do
not cite to Baral v. Schnitt (2016) 1 Cal. 5th 376 (5 CT 1071-1090). Neither does Appellant
provide any authority or argument in support of striking particular allegations in the First Amended
Complaint. As a result, Responent did not include any argument or case cites in opposition (7
CT 1543-1552).

Appellant did cite to Baral v. Schnitt once in their reply brief (8 CT 1647). However,
their argument is waived because these contentions were raised for the first time in their reply
Keyes v. Bowen (2010) 189 Cal. App. 4th 647, 660. Baral v. Schnitt was mentioned in the motion
itself, but no argument in support of how it applied to this case was raised at that time (5 CT 1069).

It would be patently unfair to allow Appellant to raise these arguments for the first time on
Appeal Garcia v. McCutchen (1997)16 Cal. 4th 469,698 at fn 10.. Respondent had no opportunity
to respond in his opposition to an argument that had not been raised in the initial moving papers
of Appellant.

27
 The Baral opinion was expressly limited to the second prong of the anti-SLAPP statute and
analysis Baral v. Schnitt (2016) 1 Cal. 5th 376 . Therefore, any discussion or holding must have
been or intended to limited to the second prong.

Appellant raises it strictly in her section in support of whether or not the claim “arises from”
protected activity. (AOB 32-33). Therefore, the argument has no merit or its scope is diminished.
Baral addressed cases with mixed causes of action. That is not the case here. In Okorie v. Los
Angeles Unified School District (2017) 14 Cal. App. 5th 574, the court the court affirmed that the
principal thrust or gravamen analysis was still the proper analysis after Baral Ibid at 590. More
importantly, in Okorie the movant sought to strike the entire complaint that consisted of more
than one cause of action. It’s holding should be confined to those types of pleading in this case at
least.

C Respondent Has The Probability Of Prevailing On It’s Claim

Plaintiff in the present action can establish the probability of prevailing as is only
required if the defendant establishes the first prong (§ 425.16, subd. (b)). They can show they
have stated and substantiated a legally sufficient claim Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1123. The claim does not lack merit can it be stricken. This
is sufficient to meet their burden Navellier v. Sletten (2002) 29 Cal. 4th 82, 89.

In the second prong of the SLAPP analysis the court determines whether a prima facie
showing has been made which would warrant the claim going forward. Even where the evidence
conflicts if the plaintiff has presented a sufficient pleading and has presented evidence showing a
prima facie case will be established at trial , the plaintiff is entitled to proceed Robertson v.
Rodriguez (1995) 36 Cal. App. 4th 347, 355-356.

1. Prima Facie Case Of Anticipatory Breach Will Be Proven At Trial

Appellant’s three actions constituted anticipatory breach of contract. The existence of these
documents are either on the record are affirmed in the declaration of Appellant or the September
7th, 2016 letter putting Respondent on notice of thes breaches. As a result, this case can be
established merely by way of calling the Appellant as a hostile witness or later upon cross-
examination.

28
 On August 12, 2016, Appellant cancelled the lease in the form of a written letter (7 CT 1402
at par. 12). This occurred four (4) days before the commencement date of August 16, 2016. The
lease did not require Respondent to deliver possession of the premises until its commencement
date of August 16, 2016. In paragraph 28 of the lease Respondent had five (5) days after a
unilateral notice was served. This notice was required to have been served on or after the
commencement date deliver possession (1 CT 226)

On August 13, 2016, Appellant personally signed a formal California Association of Realtors
cancellation form (7 CT 1385). This was sent to Jennifer Barnes and not Respondent. As of
September 2, 2016, Appellant had failed to pay full rents for September 2016. She had agreed to
do the same in the lease and in its addendum. The lease required rent payments on or before the
first of the month (1 CT 223). Appellant had separately agreed to pay the September 2016 rents on
the first in the lease addendum ( 7 CT 1379). At the same time she paid the security deposit, she
made a payment covering part of September 2016.

This lawsuit was filed on August 24, 2016. The reason for the filing of the lawsuit were the
1)cancellation letter of August 12, 2016; 2) formal notice of cancellation on August 13, 2016; 3)
failure to pay rents after service of 3-day notice to pay rent or quit.

The lease attached to the complaint is capable of judicial notice. The fact that August 12,
2016, precedes both August 16, 2016, and August 21, 2016 is a matter capable of judicial notice.
Paragraph 28, of the lease was clearly breached as Appellant did not honor the lease terms or her
agreement with Jennifer Barnes reached prior to even signing the lease.

2. Respondent Is Proper Party

On page 36 of the Appellant’s brief she raises the same argument she raised in the lower court
in her demurer heard by Judge Maas III on March 24, 2017, The trial court overruled Appellant’s
demurrer to the First Amended Complaint (5 CT 1066). The court ruled that Respondent was a
proper party and had capacity to sue. Judicial notice was granted as to the earlier amendment of
which Appellant had ignored once again. The lease was attached as Exhibit A to the complaint
and was necessarily considered by the Court. This ruling establishes that Respondent has made a
prima facie showing they are a proper party.

29
 In Appellant’s First Amended Cross-Complaint filed on May 19, 2017, she pleads that
Respondent signed the lease agreement at paragraph 17 (7 CT 1469). In her brief she cites to
nothing on the record supporting the assertion that Respondent was suspended on the date of filing
the action.

As to lack of standing, Appellant confuses standing with capacity to lack of capacity to sue.
Suspension of corporate powers results in a lack of capacity to sue and is a plea in abatement
Color-Vue Inc. v. Abrams(1996) 44 Cal. App. 4th 1599, 1603-1604). Even if they were suspended,
the case could at worst be abated until such time as the limited liability company was made active
again. Regardless, as noted above the court has already ruled they have capacity to sue. Appellant
repeatedly has ignored orders of the trial court.

3. Appellant Owed Rents On September 7, 2016

The lease shows that rent is due on the first of the month. As established above a 3 day
notice to pay rent or quit was properly served. Appellant has admitted she only paid $910.88
toward the monthly rents due of $9,000 dollars. At a minimum she owed for the September 2016
balance due of future rents and this is included in the breach of contract cause of action prayer. If
tenants who signed leases could simply dishonor their agreements by not taking possession or
simply moving out, then Appellant would be correct. But that is not the real world and not what
occurred here.

4. Jennifer Barnes Was A Licensed Real Estate Agent For Respondent

Appellant’s amended cross-complaint admits that Jennifer Barnes was a licensed real estate

agent and property manager acting as agent for Respondent. It is pled that she was agent for

Respondent, and the veracity of her declaration filed in support of this motion and cross-complaint

pleadings depend on this fact. It is not conceded that an owner of a single rental unit has to have

to be a licensed real estate broker. That would of course invalidate virtually all single unit rental

agreements and leases in the State of California.

30
 5. Litigation Privilege Does Not Bar Claim Or Probability Of Prevailing

Appellant jettisons mentioning her Prong I case of Neville v. Chudacoff, (2008)160

Cal App. 4th 1255 In Neville, the court rejected the idea that conduct deemed communicative
for purposes of Civil Code Sect. 47 automatically qualifies as protected speech Id at 1263 See
also Birkner v. Lam (2007) 156 Cal.App.4th 275, 284.

Appellant’s key cases were not merely breach of contract actions. Other causes of action
were involved in the decision Each involved interactions of the plaintiff with government
agencies. Necessarily this would involve public participation not simply breach of contract
claims where litigation privilege could still be applied albeit on a more narrow basis.

A prelitigation communication is privileged only when it relates to litigation that is

contemplated in good faith and under serious consideration Eisenberg v. Alameda Newspapers,
Inc. (1999) 74 Cal.App.4th 1359, 1381.

The litigation privilege was designed to limit an individual’s potential liability for
defamation.” Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1163 It was extended to
other torts in (Albertson v. Raboff (1956) 46 Cal.2d 375. The litigation privilege has since
“been held to immunize defendants from tort liability based on additional tort theories. Silberg v.
Anderson (1990) 50 Cal. 3d 205. The closest to the present case is intentional inducement of
breach of contract.

The Respondent’s case is a garden variety breach of contract action. It is the Appellant
who retaliated by bringing a pleading with twelve causes of actin including an alleged RICO
violation. It is her action that is subject to the privilege.

6. Attorney Fees Should Not Be Granted To Appellant

Attorney fees can only be awarded if the Appellant prevails. The basis, scope and amount is
within the discretion of the trial court. Respondent requests attorney fees under the authority of
425.16 (c)(1)as this appeal is and underlying motion is frivolous or is solely been filed in the trial
court and appealed to this court for purposes of unnecessary delay.

31
CONCLUSION

For the foregoing reasons and authorities, the Order denying the anti-SLAPP motion
issued on June 9, 2017, by the trial court should be affirmed. Respondents should recover costs
on appeal. Upon noticed motion, Respondent should be allowed to move for and seek
reasonable attorney fees.

January 4, 2018.

Respectfully submitted by

MARSHALL LAW

DANIEL MARSHALL, ESQ. Attorneys for Respondent

LYNCH PARTNERS LLC

32
 CERTIFICATE OF WORD COUNT

Cal. Rules of Court., Rule 8.2024 (c) (1)

I THE UNDERSIGNED RESPONDENT’S COUNSEL CERTIFY THAT THIS BRIEF

CONSISTS OF:

9,380 WORDS

EXCLUSIVE OF THOSE PORTIONS OF THE BRIEF SPECIFIED IN CALIFORNIA

RULES OF COURT 8.204 c) (3) RELYING ON THE WORD COUNT OF THE MICROSOFT
WORD

2016 COMPUTER PROGRAM USED TO PREPARE THE BRIEF.

DATED January 4, 2018

MARSHALL LAW

. .

DANIEL MARSHALL, ATTORNEYS FOR PLAINTIFFS

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 PROOF OF SERVICE BY MAIL and Electronic Service

I declare that I am a resident of or employed in the County of SAN DIEGO California.

I am over the age of 18 years and not a party to the within entitled cause. The name and address
of my residence or business is 3245 UNIVERSITY AVENUE SAN DIEGO, CA 92104
I am readily familiar with the ordinary practice of the business of collecting, processing and
depositing correspondence in the United States Postal Service and that the correspondence will be
deposited the same day with postage thereon fully prepaid.

On JANUARY 4, 2018 , I served the

RESPONDENT’S BRIEF
on the parties listed below by placing a true copy thereof enclosed in a sealed envelope postage
pre-paid and dropped for collection and mailing in the United States Postal Service following
ordinary business practices at San Diego , California addressed as follows:

Honorable Earl H. Maas III

Superior Court of California
County of San Diego
325 S. Melrose Drive
Vista CA 92081

Served a SINGLE COPY Electronically Served Upon

Steve Blake and Daniel Watts sblake@galuppolaw.com dwats@galuppolaw.com

Attorney for Appellant
2792 Gateway Road # 102
Carlsbad, CA 92009

1 copy served on
SUPREME COURT OF CALIFORNIA
Rule 8.212 ©(2)

I FURTHER DECLARE THAT THAT THIS SAME DAY THE ORIGINAL HAS BEEN
ELECTRONICALLY FILED ON THE CALIFORNIA COURT OF APPEAL FOURTH DISTRICT DIV. 1

I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed on 1/4/18 , at SAN DIEGO
,
California.
DANIEL MARSHALL, ESQ. /S/ DANIEL MARSHALL
(Type or print name) (Signature)

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