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plaintiffs’ security deposit towards the payment of rent when they were not in default.
Misuse of a security deposit is not an act in furtherance of the attorney defendants’ rights
of free speech or petition, nor is it a communication preparatory to or in anticipation of
litigation. Although the fourth cause of action incorporates all prior paragraphs of the
first amended complaint, the incorporated allegations of protected activity merely provide
context and are not the basis for plaintiffs’ claim for recovery under Civil Code section
1950.5. Thus, such allegations do not support striking the fourth cause of action. (Baral,
supra, 1 Cal.5th at p. 394.)
We reject the attorney defendants’ contention that this cause of action could only
have been based on their litigation activities, as they overlook the allegation that
“defendants,” collectively, misapplied the security deposit. Although plaintiffs submitted
no evidence disputing Meyers’s sworn statement that he had no involvement in the
handling of plaintiffs’ security deposit, plaintiffs were under no obligation to demonstrate
a probability of prevailing on the merits of this claim because the attorney defendants did
not carry their initial burden to show the claim arose out of protected activity. (Baral,
supra, 1 Cal.5th at p. 396.) We conclude the trial court properly denied the motion as to
the fourth cause of action on the first prong of the anti-SLAPP analysis.
B. Second Prong – Probability of Prevailing
Because it is undisputed that the remaining claims for wrongful eviction, breach of
the covenant of quiet enjoyment,5 and malicious prosecution arose out of protected
activity, the burden shifted to plaintiffs to show a probability of prevailing on these
claims. To satisfy their burden, plaintiffs had to demonstrate the challenged claims were