Area 51 Prods., Inc. v. City of Alameda

had few if any compliance issues. Thus, in September 2013 Area 51 and Rock Wall formed a new entity, Area 51 Enterprises, LLC (Enterprises). On September 23, 2013, Enterprises entered into a one-year standing licensing agreement with the City starting October 1, 2013. The agreement provided (1) it was "fully revocable at the sole option and discretion of" the City, and (2) prohibited transfers to anyone but Enterprises and the City.

Only a few days later, on October 4, 2013, Rock Wall severed ties with Area 51 and withdrew from Enterprises. It seems no one informed the City of this development until January 2014, at which point PM notified Area 51 that "the current license agreement in place is no longer valid since the company has made legal changes with their stakeholders and the agreement is between the City and both companies." Before and after finding out about Rock Wall's withdrawal from Enterprises, the City placed "soft holds" on the NWT property upon Area 51's request, for various events from May to December 2014. In February 2014, the City reminded Area 51 by email that it would need to obtain new license agreements; otherwise, it would "be unable to utilize the Northwest Territories for the events held on the calendar." It is unclear whether Area 51 received, acknowledged, or responded to these emails.

On March 10, 2014, Area 51 emailed PM to confirm the holds for its events later that year. The next day Elgarico replied for PM on behalf of the City, confirming the "soft holds" for the specified dates. The City then emailed Area 51 in late March to reiterate it needed to memorialize "licenses for those scheduled events," and PM emailed Area 51 in April with a draft license agreement for its May event and clarified that PM would "do a new [l]icense agreement for each of [Area 51's] events." According to Area 51, this email exchange essentially serves as the communicated offer and acceptance of terms, producing a firm contractual commitment to license the NWT properties to Area 51 on the "soft hold" dates.

Defendants allegedly breached this "agreement" in May, as evidenced by a May 19, 2014 email from Mocanu to Area 51, stating "I have spoken to the

by virtue of confirming the holds on its events "on or about March 11, 2014"; (2) tortious interference with Area 51's third-party contracts; (3) intentional interference with prospective economic relations; (4) negligent interference with prospective economic relations; (5) unfair competition under Business and Professions Code section 17200 ; and (6) negligent misrepresentation, as to the "important fact ... that their confirmed reservations of the [NWT] Property would be honored."

The City and the Individual City Defendants timely moved to strike all six causes of action under the anti-SLAPP statute, and the PM Defendants joined the motion. Area 51 opposed it, submitting the declaration of its Chief Executive Officer, John Walker, as the sole evidentiary showing in support of its claims. Without attaching and authenticating any of the various documents supplied as exhibits to the complaint, Walker's declaration reads, in its entirety, as follows:

"1. I am the CEO of Area Productions, Inc., d/b/a Area 51 Enterprises, LLC, the Plaintiff if [ sic ] the above-captioned action.

"2. In March of 2014 of 2014 [ sic ] the City and PM Realty, through its [ sic ] agents and employees[,] confirmed and agreed on dates for four events.

deal with Area 51's former partner, Rock Wall.

an issue of public interest" ( § 425.16, subd. (e)(4) ).

If a court concludes the activity at issue is protected by subdivision (e), it turns to the second step: " ' "it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim." ' " ( Barry , supra , 2 Cal.5th at p. 321, 212 Cal.Rptr.3d 124 , 386 P.3d 788 .) "The court ' " 'accept[s] as true the evidence favorable to the plaintiff [citation] and evaluate[s] the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.' " ' " ( Ibid. ) Courts "do not resolve the merits of the overall dispute, but rather identify whether its pleaded facts fall within the statutory purpose, 'to prevent and deter "lawsuits ... brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." ' " ( Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35 , 54, 148 Cal.Rptr.3d 119 .) The plaintiff is required to " 'show ... there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment.' [Citation.] 'The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.' " ( City of Costa Mesa , supra , 214 Cal.App.4th at p. 376, 154 Cal.Rptr.3d 698 .) " ' "Only a cause of action that satisfies both prongs of the anti-SLAPP statute ... is a SLAPP, subject to being stricken under the statute." ' " ( Barry, supra , 2 Cal.5th at p. 321, 212 Cal.Rptr.3d 124 , 386 P.3d 788 .)

On appeal, we review the trial court's ruling on Defendants' anti-SLAPP motion de novo. ( Flatley, supra, 39 Cal.4th at p. 325, 46 Cal.Rptr.3d 606 , 139 P.3d 2 .) And in doing so, we follow the same two-step analysis (outlined above) as the trial court: "[W]e neither 'weigh credibility [nor] compare the weight of the evidence. Rather, ... [we] accept as true the evidence favorable to the plaintiff

Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 , 1062, 217 Cal.Rptr.3d 130 , 393 P.3d 905 ( Park ).) "Critically, 'the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech.' [Citations.] ... [T]he focus is on determining what 'the defendant's activity [is] that gives rise to his or her asserted liability-and whether that activity constitutes protected speech or petitioning.' " ( Id. at pp. 1062-1063, 217 Cal.Rptr.3d 130 , 393 P.3d 905 .) "If the core injury-producing conduct upon which the plaintiff's claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute." ( Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264 , 1272, 99 Cal.Rptr.3d 805 ; see City of Colton v. Singletary (2012) 206 Cal.App.4th 751 , 767, 142 Cal.Rptr.3d 74 ( Singletary ) ["the question is whether the protected activity is merely an incidental part of the cause of action"].)

Essentially, the "court must 'distinguish between (1) speech or petitioning activity that is mere evidence related to liability and (2) liability that is based on speech or petitioning activity. Prelitigation communications ... may provide evidentiary support for the complaint without being a basis of

through fifth causes of action against the City are based on an alleged act of breach of

the Individual City Defendants that Vasquez "does for claims that mix together co-defendants what Baral ... did for causes of action that mix together protected and unprotected conduct: [I]t emphasizes that each person's conduct is to be analyzed separately." A party-by-party mode of analysis makes a difference here. While the thrust of the first five causes of action as against the City itself is an alleged breach of contract, Area 51 does not allege that the Individual City Defendants or the PM Defendants were themselves contracting parties; the sole basis for asserting liability against these other parties is what they did on behalf of the City, and as alleged here, that conduct is expressive in nature. For these parties-the PM Defendants via Elgarico's March 11 email confirming reserved dates, and the Individual City Defendants via Mocanu's May 19 email announcing that the City's "relationship with Area 51 is over"-the sole basis of their alleged liability appears to be communication, either in saying things that formed an alleged contract with the City, or in saying things that announced the end of that contract. Under a plain language reading of the anti-SLAPP statute, all of these communicative acts qualify as "written or oral statement[s] or writing [s] ... made in connection with an issue under consideration ... by a[n] ... executive ... body." (See § 425.16, subd. (e)(2).)

We find unpersuasive Area 51's rejoinder that there was no "official proceeding" in play here and thus that subdivision (e)(2) of the statute has no application. Area 51 alleges that the City, acting through the Individual City Defendants and the PM Defendants, committed to issue a license to Area 51 to use space in the NWT and then refused to honor that promise. This theory of liability rests on Elgarico's March 12 confirmation email and the discussions between Russo and Mocanu (mentioned in Mocanu's May 19 email) that led to the end of the City's relationship with Area 51. Given Area 51's agency allegations, it can fairly be inferred that all of this communicative activity-of necessity-took place pursuant to Russo's executive authority as City Manager. To be deemed "under consideration" by an "executive body," a matter must be given " ' " 'attentive thought, reflection, [or] meditation.' " ' " ( City of Costa Mesa , supra, 214 Cal.App.4th at p. 373, 154 Cal.Rptr.3d 698 .) There is

under consideration by an executive body is involved. ( Briggs, supra, at pp. 1116-1117, 81 Cal.Rptr.2d 471 , 969 P.2d 564 [ § 425.16, subd. (e)(2) protects " 'free speech and petition conduct aimed at advancing self government, as well as conduct aimed at more mundane pursuits' "].) Substantive inquiry into the nature of the issue is not necessary as long as some type of official decision-making, formal or informal, is involved. Under section 425.16, subdivision (e)(2), the pendency of an issue before a government body is a proxy for its character as public in nature.

2. The Sixth Cause of Action

Our analysis of the sixth cause of action, a negligent misrepresentation claim, is more straightforward than it is for the first five because this claim is based purely on expressive conduct. In the sixth cause of action, Area 51 alleges: "Plaintiff was harmed because Defendants negligently misrepresented an important fact-namely that their confirmed reservations of the Property [in the March email] would be honored." For the reasons explained above in section II.B.1 with respect to section 425.16, subdivision (e)(2), we conclude that the alleged misrepresentations on which the sixth cause of action is based constitute anti-SLAPP protected activity.

embodied in the declaration of its CEO, John Walker. The gist of the theory offered in this declaration appears to be that, following the termination of a "Long Term Agreement" between the City and Area 51 in October 2013, the course of dealing between the parties from October 2013 to May 2014 created some sort of contract or contracts under which the City was bound to provide space at NWT whenever PM Realty "confirmed" the availability of that space, but that the City reneged on this commitment due to some personal animus "the Defendants have against [him]" and a desire to do

successful defendant." [Citation.] However, a fee award is not required when the motion, though partially successful, was of no practical effect. [Citation.] "[A] party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. The determination whether a party prevailed on an anti-SLAPP motion lies within the broad discretion of [the] trial court." [Citation.]' " ( Singletary , supra , 206 Cal.App.4th at p. 782, 142 Cal.Rptr.3d 74 ; see also Huntingdon , supra , 129 Cal.App.4th at p. 1267, 29 Cal.Rptr.3d 521 [" 'Although this court has the power to fix attorney fees on appeal, the better practice is to have the trial court determine such fees.' "].)

Under these standards, we conclude that, since the Individual City Defendants and the PM Defendants are the prevailing parties on all causes of action, they are entitled to awards of fees and costs reasonably allocable to achieving that result, including fees and costs incurred on appeal. With respect to the request for attorney fees and costs from the City, it too is a victorious party in part, so we conclude that it may be entitled to an award of fees and costs reasonably allocable to achieving that victory, including appellate fees and costs. (See ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993 , 1020, 113 Cal.Rptr.2d 625 [partial success by defendant filing anti-SLAPP motion generally "reduces but does not eliminate the entitlement to attorney fees"]; see also Moran v. Endres, supra, 135 Cal.App.4th at pp. 954-956, 37 Cal.Rptr.3d 786 [fees and costs may be denied to a partially prevailing defendant whose motion achieved little or no practical benefit].) The trial court is best positioned to determine whether to award fees and costs to the City, and to determine, as to all Defendants, the appropriate allocations and the amounts reasonably awardable. (See Huntingdon , supra , 129 Cal.App.4th at p. 1267, 29 Cal.Rptr.3d 521 .)

Finally, as to the fee request from Area 51, it is a prevailing party in part. But as a prevailing plaintiff , Area 51 is only entitled to fees if the City's motion to strike was "frivolous" or "solely intended to cause unnecessary

Area 51 Productions, Inc. (Area 51), an event planning company, had a long-standing relationship with the City of Alameda (the

For over a decade, the City has licensed the NWT and other property to Area 51, an event promotion company, for various events the company has helped plan and promote on behalf of third-party companies. Apparently, however, this long-standing relationship has been periodically fraught with disputes surrounding Area 51's compliance with the City's rules. For instance, the two parties have sometimes disagreed on whether Area 51 properly disclosed its intended activities in some licensing applications; and sometimes other tenants have complained about Area 51's disturbances. Given these issues, around late 2013 the City encouraged Area 51 to work with Rock Wall, another of the City's tenants, but one with whom it has

City Manager" and "the City's licensing relationship with Area 51 is over." Nevertheless, the event in May took place as scheduled without a new license agreement, but gave rise to some compliance disputes which ultimately triggered the City's termination of the relationship on May 19. In her May 19 email to Area 51, Mocanu pointed to these compliance issues as an example of why the City had wanted Area 51 to work "under Rock Wall."

B. Procedural History

Area 51 filed a notice of claim with the City, requesting use of the property on the dates requested or damages. The City denied this request, prompting Area 51 to file its complaint, naming as defendants the City, the Individual City Defendants, and the PM Defendants, and asserting six causes of action against all of them. In the complaint, Area 51 alleged on information and belief that each Defendant was an "agent, employee or representative of each of the ... [other] Defendants and in doing the things mentioned herein, was acting in the course and scope of such agency and employment." Attached to the complaint were numerous documentary exhibits detailing many of the facts summarized above.

Area 51's six causes of action were: (1) breach of contract and breach of the implied covenant of good faith and fair dealing, based on its belief that Defendants had entered into a contract with Area 51

Two events, one for Volkswagen and one for BMW, occurred before the natural termination of a Long Term Agreement for leasing space with the City that was set to expire in September, 2014. The remaining events, for Bridgestone and Porsche, were set to occur on October 7-12, 2014 and November 4-10 2014, respectively. PM Realty knew that the Property must be unconditionally available before I could secure Third Party Agreements and attendance insurance, as was customary in our dealings for the prior two decades.

"3. Area 51 Enterprises was formerly business partners with Rock Wall Wine, Inc.

"4. When Area 51 Enterprises partnered with Rock Wall Wine, Inc., it introduced Rock Wall to the Property it had used to hold its events for the prior 18 years.

"5. Up until September 2014 Area 51 and the City had a Long Term License Agreement that covered all of its individual events.

"6. After September 2014 Area 51 confirmed its individual events with PM Realty before entering into Third Party Agreements.

"7. Contrary to Defendants' assertion that it either (a) was 'void 4 days after its execution' or (b) 'in January 2014' when Defendant[s] allegedly became aware of potential grounds to void the Agreement, I never received any indication that the City or PM Realty prevent [ sic ] Area 51 from use of the Property.

"8. In fact, up until May of, 2014, the City, PM Realty and the Individual Defendants continued to accept security deposits from Area 51 and never indicated that Area 51 should not enter into Third Party Agreements, after confirming their space, as they had in the 18 years prior.

"9. Although the City and PM Realty have offered a number of excuses for failure to provide the Property as required, among them: (1) heavy trucks ... (2) change in proportional shares of Area 51 and (3) licensing issues, the Defendants have neglected their obligations due to a personal issues [ sic ] the Defendants have with me, unrelated to business or any agreements we have entered.

"10. Upon information and belief, the City, PM Realty, [and the] Individual Defendants conspired to force Area 51 out of the lease space and secure a more lucrative

protected activity." ' " ( Barry v. State Bar of California (2017) 2 Cal.5th 318 , 321, 212 Cal.Rptr.3d 124 , 386 P.3d 788 ( Barry ).) Although the anti-SLAPP statute does not actually use the term "protected activity," that is the shorthand phrase adopted in the case law to describe speech or petitioning activities. (See, e.g., ibid. ; Navellier v. Sletten (2002) 29 Cal.4th 82 , 89, 124 Cal.Rptr.2d 530 , 52 P.3d 703 ( Navellier ) [interpreting § 425.16, subd. (b)(1), to require that the court first decide whether "the challenged cause of action is one arising from protected activity"].) Four categories of "protected activity" are set forth in section 425.16, subdivision (e), which defines 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.' " Two of these categories-set forth in subdivision (e)(2) and (4)-are invoked by Defendants here: "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" ( § 425.16, subd. (e)(2) ), and "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

[citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.' " ( Id. at p. 326, 46 Cal.Rptr.3d 606 , 139 P.3d 2 .)

B. The First Step of the Anti-SLAPP Analysis

In applying section 425.16, subdivision (b)(1), the mode of proceeding and the applicable analysis at the often-elusive first step have been worked out in some detail in the case law. "[T]he court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." ( § 425.16, subd. (b)(2).) "To determine whether a cause of action arises from protected activity, we disregard its label and instead examine its gravamen 'by identifying "[t]he allegedly wrongful and injury-producing conduct ... that provides the foundation for the claim." ' [citation], i.e., ' "the acts on which liability is based ," ' not the damage flowing from that conduct." ( Wilson v. Cable News Network, Inc. (2016) 6 Cal.App.5th 822 , 831, 211 Cal.Rptr.3d 724 , review granted Mar. 1, 2017, S239686 ( Wilson ); see Navellier , supra , 29 Cal.4th at pp. 91-95, 124 Cal.Rptr.2d 530 , 52 P.3d 703 ; City of Cotati v. Cashman (2002) 29 Cal.4th 69 , 78, 124 Cal.Rptr.2d 519 , 52 P.3d 695 ( City of Cotati ) ["the statutory phrase 'cause of action ... arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech"].)

"A claim arises from protected activity when that activity underlies or forms the basis for the claim." (

contract. ( King , supra , 157 Cal.App.4th at p. 272, 68 Cal.Rptr.3d 499 .) In Vivian , the court held that, because the plaintiff was trying to "impose liability on [the defendant] for having made her statements to the internal affairs investigators and in her family court papers," the plaintiff's action was " 'based on' that activity and [thus] [came] within the scope of section 425.16." ( Vivian , supra , 214 Cal.App.4th at p. 274, 153 Cal.Rptr.3d 707 .) Here, Area 51 is not attempting to impose liability on the City for "having made ... statements ...." ( Ibid. ) The communicative acts by others preceding or otherwise made in connection with the City's alleged breach of contract are merely collateral to, or evidence that may be probative of, Area 51's theories of liability. (See Wilson , supra , 6 Cal.App.5th at pp. 831-832, 211 Cal.Rptr.3d 724 , rev. granted; King , supra , 157 Cal.App.4th at p. 272, 68 Cal.Rptr.3d 499 .)

In Digerati Holdings , the court held the challenged cause of action arose out of "statements ... made in anticipation of a lawsuit," not out of a breach of an agreement, as alleged here. (See Digerati Holdings , supra , 194 Cal.App.4th at pp. 887-888, 123 Cal.Rptr.3d 736 .) The court in Feldman held as protected activities the defendant's "threats [to evict the plaintiff], the service of the three-day notice, and the filing of the unlawful detainer action." ( Feldman , supra , 160 Cal.App.4th at p. 1484, 74 Cal.Rptr.3d 1 .) But here, Area 51 is not alleging any conduct by the City connected to the pursuit of litigation or possible litigation; rather, as stated in detail above, it is alleging the City ended an alleged agreement to license the NWT to Area 51 upon any confirmation by "soft hold," thus interfering with Area 51's third-party agreements. Finally, in City of Costa Mesa the court held the plaintiff was "suing for relief based on the oral statements, not challenging the underlying acts (the refusal of the City and its employees to issue licenses)," and the action thus arose from protected activity within the statute. ( City of Costa Mesa , supra , 214 Cal.App.4th at p. 375, 154 Cal.Rptr.3d 698 .) In contrast, Area 51 is indeed challenging the City's underlying act of refusing to license. That conduct is the gravamen of each of the first five claims it asserts against the City. And as noted above, the surrounding communications are merely evidence of its refusal.

In Vasquez , following a vote by the Montebello City Council in favor of entering a municipal waste disposal contract with a private party, it then came to light that some of those members may have had conflicts of interest due to certain financial contributions to their campaigns, among other things. ( Vasquez , supra , 1 Cal.5th at pp. 413-416, 205 Cal.Rptr.3d 499 , 376 P.3d 624 .) Although the district attorney declined to prosecute the members of the city council, the City of Montebello sued them along with the city administrator who helped negotiate the contract terms, alleging a single cause of action that charged unlawful conflict of interest pursuant to Government Code section 1090. ( Vasquez, supra, at pp. 413-415, 205 Cal.Rptr.3d 499 , 376 P.3d 624 .) The defendants met the claim with an anti-SLAPP motion, which the trial court denied. ( Id. at p. 415, 205 Cal.Rptr.3d 499 , 376 P.3d 624 .) After an affirmance by the Court of Appeal, the California Supreme Court reversed, holding "the council

members' votes, as well as statements made in the court of their deliberations at the city council meeting where the votes were taken, qualify as 'any written or oral statement made before a legislative ... proceeding.' ( § 425.16, subd. (e)(1).)" ( Vasquez, supra, at pp. 422-423, 205 Cal.Rptr.3d 499 , 376 P.3d 624 .) The

found the anti-SLAPP statute inapplicable to claims against the board of a county employees' retirement association-a public entity, the board itself, was being sued for making a pension contribution decision. Pointing out that no individuals were sued there, the Supreme Court rejected the plaintiffs' contention that applying the anti-SLAPP statute to the allegedly corrupt conduct of the individual defendants in Vasquez would unduly insulate governmental action from legal accountability. "It is not necessary to sue government officers in their personal capacities to challenge the propriety of a government action," the court explained. ( Vasquez , supra , 1 Cal.5th at p. 426, 205 Cal.Rptr.3d 499 , 376 P.3d 624 .)

We agree with the observation made in a supplemental brief filed by the City and

no talismanic significance to " official or formal proceedings." ( Ibid ., italics added.) Something more than ministerial action is required, but any form of deliberative executive decision-making will suffice. ( Ibid. ; see Maranatha Corrections, LLC v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075 , 1085, 70 Cal.Rptr.3d 614 .) Here, the process by which Russo arrived at and implemented a decision about licensing the City's property-working informally with, and through, others-cannot be described as ministerial.

Area 51's fall-back argument is that the alleged communicative acts by the Individual City Defendants and the PM Defendants were not undertaken in connection with a "public issue." This secondary line of argument is also contrary to the language of the statute, plainly read. The text of section 425.16, subdivision (e)(2) contains no "public issue" or "issue of public interest" requirement beyond a showing the communication was made in connection with an issue under consideration by an executive body. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 , 1119, 81 Cal.Rptr.2d 471 , 969 P.2d 564 ["[A] plain reading of subdivision (e)(1) and (2) ... imports no additional 'public issue' requirement[.]"].) To satisfy the "official proceeding" language in section 425.16, subdivision (e)(2), no additional showing need be made if any written or oral statement in connection with an issue

C. The Second Step of the Anti-SLAPP Analysis

Having concluded that all six of Area 51's causes of action arise from protected activity-in part, or entirely-we proceed to the second step of the anti-SLAPP analysis for the first five causes of action insofar as they are pleaded against the Individual City Defendants and the PM Defendants, and for the sixth cause of action insofar as it is pleaded against all Defendants. Because we conclude that the first though fifth causes of action do not involve protected speech or actions by the City, we do not reach the second prong of the anti-SLAPP analysis of whether Area 51 can show a probability of prevailing on those claims as pleaded against it alone. ( City of Alhambra v. D'Ausilio (2011) 193 Cal.App.4th 1301 , 1309, 123 Cal.Rptr.3d 142 .)

"We ... evaluate the defendants' evidence only to determine if it defeats that submitted by the plaintiff as a matter of law." ( Wilson , supra , 6 Cal.App.5th at pp. 831-833, 211 Cal.Rptr.3d 724 , rev. granted.) "[I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have ' "stated and substantiated a legally sufficient claim." ' [Citation.] 'Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' " ( Navellier, supra, 29 Cal.4th at pp. 88-89, 124 Cal.Rptr.2d 530 , 52 P.3d 703 .) It was not enough simply to replead, as Area 51 did after Defendants' demurrer was sustained. ( DuPont Merck Pharmaceu tical Co. v. Superior Court (2000) 78 Cal.App.4th 562 , 568, 92 Cal.Rptr.2d 755 .) To survive Defendants' motion, the burden was on Area 51 to come forward with admissible evidence showing a probability of prevailing on each claim exposed to step two anti-SLAPP analysis, enough to make out a viable prima facie case at trial. That burden was not particularly high ( Navellier , supra , 29 Cal.4th at p. 94, 124 Cal.Rptr.2d 530 , 52 P.3d 703 ["claims with the requisite minimal merit may proceed"] ), but we conclude Area 51 failed to meet it in the following respects.

1. The First Through Fifth Causes of Action As Pleaded Against the Individual City Defendants and the PM Defendants

Area 51's evidentiary showing in opposition to the anti-SLAPP motion is

fraudulent business act[ ] or practice [ ]

costs." ( Barry , supra , 2 Cal.5th at p. 327, 212 Cal.Rptr.3d 124 , 386 P.3d 788 .) "A 'prevailing defendant' within the meaning of [the statute] includes a defendant whose anti-SLAPP motion was granted as to some causes of action but not others." ( Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228 , 1267, 29 Cal.Rptr.3d 521 ( Huntingdon ); see also Moran v. Endres (2006) 135 Cal.App.4th 952 , 954-956, 37 Cal.Rptr.3d 786 [upholding the trial court's denial of attorney fees to defendant after striking only one of plaintiffs' 11 causes of action under the anti-SLAPP statute].)

" 'The anti-SLAPP statute reflects the Legislature's "strong preference for awarding attorney fees to successful defendants." [Citation.] The term "prevailing party" must be "interpreted broadly to favor an award of attorney fees to a partially

delay." ( § 425.16, subd. (c)(1).) "A determination of frivolousness requires a finding the anti-SLAPP 'motion is "totally and completely without merit" (§ 128.5, subd. (b)(2)), that is, " any reasonable attorney would agree such motion is totally devoid of merit ." ' " ( Moore v. Shaw (2004) 116 Cal.App.4th 182 , 199, 10 Cal.Rptr.3d 154 .) In light of the developing case law surrounding the complex issues presented in the City's motion (which we have discussed in detail above), we conclude the motion, as a matter of law, does not meet the requisite frivolousness standard: When the City filed its motion, reasonable attorneys could have disagreed as to its merits. For the same reason, we see no basis to conclude the motion was filed solely for the purpose of causing unnecessary delay. Accordingly, no award of fees to Area 51 is appropriate here.

T

he trial court's order denying Defendants' anti-SLAPP motion is affirmed with respect to Area 51's first five causes of action as pleaded against the City. In all other respects, the court's order denying the motion is reversed, and the case is remanded for consideration of attorney fees and costs awardable as set forth above.

We concur: