The Superior Court of San Bernardino County, California, denied defendant seller’s special motion to strike under Code Civ. Proc., § 425.16, the anti-strategic lawsuit against public participation (anti-SLAPP) statute, as to a wrongful foreclosure cause of action brought by plaintiff real estate purchaser against the seller. The seller appealed.
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Overview
The trial court found that nonjudicial foreclosure did not involve constitutional rights or free speech but rather concerned a commercial transaction that was not protected activity under the anti-SLAPP statute. In affirming, the court held that, contrary to the seller’s argument, conduct deemed communicative for purposes of the litigation privilege in Civ. Code, § 47, did not automatically qualify as constitutionally protected speech under the anti-SLAPP statute. Further, the seller failed to show that pursuing a nonjudicial foreclosure sale qualified as constitutionally protected activity. The wrongful foreclosure claim did not concern an issue under official review that required a determination to be based on the exercise of the seller’s free speech or petition rights. Rather, the parties engaged in business dealings of a contractual nature, leading to the seller initiating allegedly unjustified private nonjudicial foreclosure proceedings. The wrongful foreclosure cause of action did not “arise from” protected free speech or petitioning activity. The gravamen of the complaint was not the notice but the initiation of allegedly inappropriate nonjudicial foreclosure proceedings.
Outcome
The judgment was affirmed.