Opinion
B320750
07-27-2023
MARI ALVAREZ Plaintiff and Respondent, v. CHRISTIAN ALVAREZ, Defendant and Appellant.
Peter Borenstein for Defendant and Appellant. Mazur &Mazur and Janice R. Mazur for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from order of the Superior Court of Los Angeles County, No. 21NWCV00129, Olivia Rosales, Judge.
Peter Borenstein for Defendant and Appellant.
Mazur &Mazur and Janice R. Mazur for Plaintiff and Respondent.
ROTHSCHILD, P. J.
This appeal arises out of a dispute between Christian Alvarez (Christian) and Mari Alvarez (Mari)-former romantic partners- concerning title to a home they purchased together in 2010. Although Christian and Mari originally held joint title to the property as tenants in common, Mari executed a quitclaim deed in 2012 granting exclusive title to Christian. The parties resided in the home together until 2020, when they decided to end their romantic relationship. Christian asked Mari to move out of the home, citing his exclusive ownership of the property. When Mari refused to leave, Christian initiated unlawful detainer proceedings against her.
Mari then filed suit against Christian alleging, inter alia, that he had fraudulently induced her to execute the 2012 quitclaim deed. Following litigation over the sufficiency of the original and first amended complaints, Mari filed a second amended complaint (SAC)-the operative complaint for purposes of this appeal. Christian demurred to the SAC and filed an "anti-SLAPP"special motion to strike the pleading, pursuant to Code of Civil Procedure section 425.16. After hearing argument from both parties, the trial court issued an order overruling the demurrer and denying the special motion to strike.
" 'SLAPP stands for "Strategic Lawsuit Against Public Participation." '" (Lee v. Kim (2019) 41 Cal.App.5th 705, 710, fn. 1 (Lee), quoting Lam v. Ngo (2001) 91 Cal.App.4th 832, 835, fn. 1.) "For clarity, we refer hereafter to an 'anti-SLAPP' motion as a 'special motion to strike'-the language used in the statute (Code Civ. Proc., § 425.16, subd. (b)(1))." (Lee, supra, at p. 710, fn. 1.)
All unspecified statutory references are to the Code of Civil Procedure.
Christian now asks us to reverse the court's order. We decline to do so because we conclude that (1) the portion of the order overruling the demurrer is not appealable, and (2) Christian has failed to demonstrate that Mari's claims arise from protected activity, as required under the first prong of the anti-SLAPP analysis. We therefore affirm.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
We summarize here only the facts and procedural history relevant to our resolution of this appeal.
Christian and Mari married in 1998. They divorced in 2007, but reconciled in January 2008. Mari contends that "in lieu of getting remarried," the parties made an oral agreement to provide financial support to one another "if one party's share of joint property was insufficient to provide him or her with the adequate means of support sufficient to provide for that party's reasonable living expenses, and that party was without any other means to provide such support."
She contends further that, also in 2008, Christian promised her that if she used her connections to help him secure a lucrative job within the longshoreman community, "he would support her for the rest of her life." Mari asserts that "[s]he did help [Christian] secure that job in reliance on these assertions."
In November 2010, Mari and Christian jointly purchased, as tenants in common, real property located at 1604 Leibacher Avenue in Norwalk, California (the property). Mari contends that she contributed approximately $6,000 of the $11,000 down payment for the property. The parties jointly took out a mortgage to finance the remainder of the purchase price.
Mari alleges that she paid the first two years of the mortgage on the property, and that "[t]he parties agreed that they would thereafter divide their joint expenses by having [Christian] pay the mortgage on the property while [Mari] paid all the other household expenses, including all bills and groceries." She asserts further that she paid the agreed upon expenses "and rendered her domestic services" for Christian's benefit "throughout the parties' relationship through May of 2020."
In December 2012, Mari executed a quitclaim deed relinquishing her interest in the property and granting exclusive title to Christian. She contends that she did so because Christian "falsely told [her] that [was] the only way to refinance the . . . [p]roperty." She also alleges that Christian represented that- apart from facilitating the refinance of the property-the quitclaim deed "had no other significance for the ownership interest between the parties." Finally, Mari asserts that Christian provided no consideration in exchange for the quitclaim deed, and that he threatened to leave her if she refused to sign the document.
In May 2020, the parties ended their romantic relationship. Mari then requested that Christian "buy her out of her interest [in the property] or list the . . . [p]roperty for sale." She contends that Christian refused, however, "to give [her] any of her 50 [percent] financial interest in the . . . [p]roperty," and that he disclosed to her for the first time that "he intended to use th[e] fraudulently obtained [quitclaim] deed to rob her of her 50 [percent] ownership interest." She asserts further that Christian refused to provide her with any financial support, notwithstanding their 2008 oral agreement.
On September 24, 2020, Christian-representing himself- initiated unlawful detainer proceedings against Mari. Christian later retained counsel, filed another unlawful detainer action against Mari, and served Mari with a notice to quit on February 8, 2021. The notice set a compliance deadline of March 10, 2021.
Alvarez v. Alvarez (Super. Ct. L.A. County, No. 20NWUD00737).
Alvarez v. Alvarez (Super. Ct. L.A. County, No. 21NWUD00198).
Mari refused to vacate the property, and on March 4, 2021, she filed suit against Christian, alleging that he had breached his promise to provide her with financial support and had fraudulently induced her to execute the quitclaim deed. In her SAC, she asserts 11 claims: for quiet title, partition of real property, constructive trust, resulting trust, breach of contract, fraud, specific performance, quantum meruit, and two causes of action for declaratory relief. The trial court stayed the unlawful detainer proceedings pending resolution of Mari's claims.
Christian then filed both a demurrer and a special motion to strike the SAC. Mari opposed the demurrer, but did not file an opposition to the special motion to strike.
The record reflects a dispute concerning whether Christian properly noticed and served the special motion to strike.
On March 24, 2022, the trial court overruled Christian's demurrer and denied his special motion to strike. With respect to the latter, the trial court concluded that Christian had failed to make the required "threshold showing that the challenged causes of action arise from protected activity." The court explained: "The allegations in [Mari's] SAC do not arise out of an act in furtherance of [Christian's] right of petition or free speech. The alleged liability against [Christian] is not solely based on the act of filing an unlawful detainer action against [Mari]. Rather, here, the basis for liability is . . . [Christian's] alleged fraudulent removal of [Mari] from title on the . . . [p]roperty....[Accordingly, Christian] has not met his burden to show that the challenged causes of action arise from protected activity under the anti-SLAPP statute. Thus, the burden does not shift to [Mari] to show by competent and admissible evidence that she will prevail on the merits of her claims."
Christian timely appealed.
DISCUSSION
A. Appealability
Christian purports to appeal both the trial court's overruling of his demurrer and the denial of his special motion to strike. We agree that Christian may appeal the portion of the March 24, 2022 order denying the special motion to strike pursuant to section 904.1, subdivision (a)(13). (§ 904.1, subd. (a)(13) ["[a]n appeal, other than in a limited civil case, may be taken from . . . [¶] . . . [[¶] . . . an order granting or denying a special motion to strike under [s]ection 425.16"].)
We conclude, however, that the portion of the court's order overruling Christian's demurrer is not appealable. (See, e.g., Lopez v. Brown (2013) 217 Cal.App.4th 1114, 1132 ["it 'is settled that an order sustaining a demurrer is not appealable' "].) We are not persuaded otherwise by Christian's argument-raised for the first time in his reply brief-that section 906 permits us to review the trial court's ruling on the demurrer. As an initial matter, Christian has forfeited this issue by failing to raise it in his opening brief. (See United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 158 [" '[w]e will not ordinarily consider issues raised for the first time in a reply brief' "].)
Moreover, Christian's contention fails on the merits. Section 906 provides, in relevant part: "Upon an appeal pursuant to [s]ection 904.1 . . ., the reviewing court may review . . . any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party." (§ 906.) Relying on Fontani v. Wells Fargo Investments, LLC (2005) 129 Cal.App.4th 719 (Fontani), disapproved on unrelated grounds in Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 203, fn. 5, Christian contends that the order overruling his demurrer is "reviewable[,] given that [the demurrer] challenges the overall merits of the case in the same way as the second prong of the [a]nti-SLAPP statute." (Capitalization omitted.)
Christian does not contend that the order overruling his demurrer "substantially affects the rights of a party." (§ 906.)
Fontani, however, does not aid Christian's position. In that case, the court determined that "the order overruling the demurrer" at issue "ha[d] no bearing on the validity of the order denying the anti-SLAPP motion." (Fontani, supra, 129 Cal.App.4th at p. 736.) "Consequently," the court concluded, "the order overruling the demurrer [could not] be said to 'involve the merits' or otherwise have an '[e]ffect' on the anti-SLAPP ruling under section 906." (Fontani, supra, at p. 736.)
The same is true here. Christian's demurrer challenging the merits of Mari's claims is relevant only to the second prong of the anti-SLAPP analysis, and his special motion to strike fails on the first prong of that analysis (discussed post). We therefore conclude that we cannot review the trial court's order denying his demurrer as part of this appeal. (Fontani, supra, 129 Cal.App.4th at p. 736.)
B. The Trial Court Properly Denied Christian's Special Motion to Strike
1. Law Governing Anti-SLAPP Motions
" '" 'The Legislature enacted the anti-SLAPP statute to protect defendants . . . from interference with the valid exercise of their constitutional rights, particularly the right of freedom of speech and the right to petition the government for the redress of grievances.'" '" (Lee, supra, 41 Cal.App.5th at p. 718, quoting Bleavins v. Demarest (2011) 196 Cal.App.4th 1533, 1539.) The statute provides that" '[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.'" (Lee, supra, at p. 718, quoting § 425.16, subd. (b)(1).)
" 'In evaluating an anti-SLAPP motion, the court conducts a potentially two-step inquiry. [Citation.] First, the court must decide whether the defendant has made a threshold showing that the plaintiff's claim arises from protected activity. [Citation.] To meet its burden under the first prong of the anti-SLAPP test, the defendant must demonstrate that its act underlying the plaintiff's claim fits one of the categories spelled out in subdivision (e) of the anti-SLAPP statute[, section 425.16].' [Citation.]" (Lee, supra, 41 Cal.App.5th at p. 718.) Because Christian has failed to make a first prong showing, we do not further discuss the second prong.
"An appeal from an order granting or denying a special motion to strike is reviewed de novo." (Lee, supra, 41 Cal.App.5th at p. 719, citing Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
2. Christian Fails to Demonstrate that Mari's Claims Arise from Protected Activity
We agree with the trial court's conclusion that Christian's special motion to strike fails on the first prong of the anti-SLAPP analysis. Although Christian is correct that the filing of an unlawful detainer action constitutes protected activity (see Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1024 (Bonni)), he fails to demonstrate that Mari's claims "aris[e] from" his unlawful detainer actions. (§ 425.16, subd. (b)(1).)
In performing the first step of the anti-SLAPP analysis, "courts should analyze each claim for relief-each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action-to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion." (Bonni, supra, 11 Cal.5th at p. 1010.)
Here, Mari's claims in the SAC arise from only three allegedly wrongful acts by Christian: (1) his purported violation of the parties' 2008 oral agreement to provide mutual financial support, (2) his alleged violation of the parties' mutual understanding that all property acquired during the relationship would consist of joint property, and (3) his alleged fraud in inducing Mari to execute the 2012 quitclaim deed.
The SAC does mention the unlawful detainer proceedings several times-in the introductory general allegations (incorporated by reference into each of Mari's 11 causes of action), as well as in the causes of action for constructive trust, breach of contract, fraud, and specific performance. But contrary to Christian's conclusory assertion that "the fact of [the] unlawful detainer supplies essential elements of [Mari's] claims for fraud and breach of contract," these allegations" 'merely provide context'" for Mari's claims and do not themselves" 'support[ ] a claim for recovery.'" (Bonni, supra, 11 Cal.5th at p. 1012.)
With respect to the breach of contract cause of action, the SAC refers to the unlawful detainer proceedings only incidentally:
"46. [The] parties ended their relationship in or about May 2020, and at that time [Mari] had no adequate, independent means of supporting herself or paying for her general living expenses. [Mari] informed [Christian] of this fact and requested that [Christian] satisfy his obligations under the oral agreement to support [Mari] until such time as [she] was able to independently provide for her general living expenses. Instead, [Christian] moved [sic] with an unlawful detainer action.
"[¶] . . . [¶]
"49. There is now due and unpaid to [Mari] from [Christian] under the agreement a reasonable sum to provide [Mari] with adequate support necessary to pay her reasonable general living expenses from May 2020 until the date of this complaint. [Christian] then filed a[n] [unlawful detainer] eviction action against [Mari] claiming she was a tenant at will and had no interest in the subject property." (Capitalization omitted and italics added.)
And although Mari's fraud cause of action references damages resulting from her need to retain an attorney to defend the unlawful detainer actions, those allegations are collateral to the alleged fraud-i.e., Christian's alleged misrepresentations concerning the purpose and effect of the 2012 quitclaim deed that resulted in Mari's forfeiture of her ownership interest in the property:
"59. [Mari] believed [Christian] when he told her that the quitclaim was merely for refinancing purposes and was completely surprised and devastated to discover that he intended to use this fraudulently obtain[ed] deed to rob her of her 50 [percent] ownership interest....
"60. Worse yet, [Christian] began unlawful detainer proceedings against [Mari], attempting to force her out of her own home without any financial compensation for her 50 [percent] interest or any ability to secure new living arrangements....
"[¶] . . . [¶]
"63. [Mari] has further been damaged by this fraudulent statement, as she has already been forced to retain an attorney to defend against unlawful detainer actions because [Christian] falsely has represented, and continues to represent, that [Mari] has no financial interest in the real property and is only a tenant at will." (Capitalization omitted and italics added.)
The SAC's allegations concerning the unlawful detainer proceedings thus are insufficient to demonstrate that Mari's claims arise from protected activity. (Bonni, supra, 11 Cal.5th at p. 1012 [" 'assertions that are "merely incidental" or "collateral" are not subject to section 425.16' "].)
Nor are we persuaded by Christian's contention that Mari "admitted [in paragraphs J through L of her opposition to his demurrer] that she filed this lawsuit to attack the propriety of [the] unlawful detainer action." Those paragraphs provide:
"J. On 2/08/2021, some eight (8) years after [Mari] had signed the quitclaim and had no idea that she granted away her one-half interest in the property as a 'gift,' [Christian] served [Mari] with a 30[-]day notice to quit the home.
"K. [Mari] immediately sought out legal assistance and filed the instant suit to quiet title, partition, breach of contract[,] and fraud.
"L. On 11/19/2021, the Norwalk superior court stayed the pending unlawful detainer action pending the quiet title action." (Capitalization omitted.)
At most, the allegations in these paragraphs suggest that the unlawful detainer actions may have triggered Mari's decision to file suit. And as we explained in Ben-Shahar v. Pickart (2014) 231 Cal.App.4th 1043 (Ben-Shahar), "[t]he mere fact that a lawsuit was filed after the defendant engaged in protected activity does not establish the complaint 'arose from' protected activity under the statute because a cause of action may be triggered by protected activity without arising from it." (Id. at p. 1051.)
Christian urges that Ben-Shahar is distinguishable because the unlawful detainer action in that case "did not cause the claim to accrue as it did in this case." But this merely is a rewording of the argument-expressly foreclosed by Ben-Shahar-that if claims are "triggered" by protected activity, they necessarily "arise from" that protected activity. (Ben-Shahar, supra, 231 Cal.App.4th at p. 1051 .)
Accordingly, because Christian has not made the required" 'threshold showing that [Mari's] claim[s] arise[ ] from protected activity,'" his special motion to strike fails on the first prong of the anti-SLAPP inquiry. (See Lee, supra, 41 Cal.App.5th at p. 718.) We therefore need not consider the second prong of the analysis (see Ben-Shahar, supra, 231 Cal.App.4th at p. 1054), and we affirm the trial court's denial of the special motion to strike.
The parties' respective requests for sanctions are denied.
DISPOSITION
We affirm the portion of the trial court's March 24, 2022 order denying Christian's special motion to strike.
We deny the parties' requests for sanctions.
Respondent is awarded her costs on appeal.
We concur: BENDIX, J., WEINGART, J.