Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. BP096765, Mitchell L. Beckloff, Judge.
Law Offices of Yevgeniya G. Lisitsa and Yevgeniya G. Lisitsa for Defendants and Appellants.
Law Offices of Deidra L. Stauff and Deidra L. Stauff; Law Offices of Harold J. Light, Harold J. Light and Bruce A. Gilbert for Plaintiff and Respondent.
Hinojosa & Wallet; Andrew M. Wallet and Rebekah E. Swan for Defendant and Respondent.
TURNER, P. J.
I. INTRODUCTION
At issue in this case are two verified Probate Code sections 850 and 859 petitions brought by Keith Williams, as the administrator of the estates Willie Mae Williams (“Willie Mae”) and Ardis Williams, Los Angeles Superior Court, Case Nos. BP096765 and BP098203, respectively. Appellants are David Behrend, Victor Roosen, and a trust, Trust Properties, LLC. Appellants were alleged in the petitions to have conspired with Sammy Ray Williams to deprive the estates of real properties. Appellants are alleged to have falsely claimed that Sammy was the child of Willie Mae and Ardis. Sammy is not related to decedents. Sammy was the son of a man named Ardis Lee Williams (Ardis Lee) who died in 1999. The appeal is from two orders denying two special motions to strike the petitions pursuant to Code of Civil Procedure section 425.16. We affirm the orders denying the special motions to strike the Probate Code sections 850 and 859 petitions.
There are a number of the individuals with the surname of Williams. Accordingly, for clarity and not out of disrespect, we refer to these persons by their first names.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
II. BACKGROUND
A. The First Amended Petitions
At issue in this case are two first amended Probate Code sections 850 and 859 petitions concerning the estate properties of the decedents, Willie Mae and Ardis. The first amended petitions allege that Willie Mae died on December 15, 2002, and Ardis on July 6, 2005. The probate court ordered the matters consolidated on December 15, 2006.
With respect to Willie Mae’s estate, it was alleged that: at the time of her death, she owned real property located at 5163 South Manhattan Place in Los Angeles; on January 30, 2006, appellants along with Marc A. Petrie, conspired to convert the Manhattan Place property to themselves; Sammy posed as Willie Mae’s son and prepared and filed a probate petition of her estate, Los Angeles Superior Court, case No. BP096765; letters of administration were issued to Sammy on June 28, 2006; the Manhattan Place property was sold to Trustee Properties, LLC as trustee for substantially less than the fair and adequate consideration; and the Manhattan Place property was subsequently transferred to Mr. Petrie. It was alleged that Trust Properties, LLC and Mr. Petrie are not bona fide purchasers for value.
As to Ardis’s estate, the first amended petition alleged that: at the time of his death, Ardis owned real property located at 1719 West 35th Place, in Los Angeles as a surviving joint tenant of his wife, Willie Mae; Sammy and Mr. Petrie conspired among themselves to deprive Ardis’s estate of the 35th Place property; the conspirators falsely claimed that Sammy was Willie Mae’s son; and Sammy recorded an affidavit of death of joint tenant. The affidavit of death of joint tenancy falsely claimed Sammy’s father, Ardis Lee died in 1999 and was married to Willie Mae. On the same date, Sammy signed a deed purporting to transfer the 35th Place property to Trustee Properties LCC as trustee of 1719 West 35th Place Trust. David Behrend subsequently transferred the 35th Place property to Mr. Petrie.
B. The Special Motions to Strike
After briefing was completed, we granted appellants’ request to augment the record to include a copy of the special motion to strike in Willie Mae’s estate, case No. BP096765 filed on May 24, 2007, by Mr. Behrend, Trustee Properties, LLC, and Mr. Roosen. This special motion to strike is exactly the same as the special motion to strike in Ardis’s estate case No. BP098203. Both special motions to strike argued: the gravamen of the petitions arise of out alleged false statements made in court filings to obtain court orders; the probate petitions filed by Sammy arise out of protected activity such that his conduct is privileged pursuant to Civil Code section 47, subdivisions (b)(2), (3) and (4); and the burden must be shifted to Keith to show a probability of success on the merits.
Mr. Roosen argued he cannot be held liable because all the conduct alleged against him occurred either in court or “with court in mind” such that his conduct is absolutely privileged under Civil Code section 47. Trustee Properties, LLC contended it was not liable because no facts were alleged to show that it was anything other than an innocent third party assignee of Mr. Roosen’s rights under the sales agreement with Sammy. Mr. Behrend contended if his codefendants were found not to be liable, then he likewise could not be the subject of suit. Mr. Behrend asserted that he was only derivatively liable on a conspiracy theory. Further, Mr. Berhend argued that he was acting at all times as the agent of Trustee Properties LLC. Thus, he was subject to the “agent immunity” rule described in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511 and Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 576.
In support of the special motions to strike, Mr. Roosen declared that he located the 35th Place property in August 2005 and found it in disrepair. Mr. Roosen canvassed the neighborhood. Mr. Roosen was told that Sammy was related to the record owner, Ardis. Sammy subsequently spoke to Mr. Roosen. According to Mr. Roosen’s declaration, “Mr. Sammy Williams contacted me and informed that Mr. Ardis Williams was in fact his father and that Mr. Ardis Williams had in fact died.” Sammy and Mr. Roosen met at the 35th Place property. Sammy was driven to the property by a person named Kevin Roby. Sammy said he wanted to sell the property. During this conversation, Mr. Roby also stated that Sammy had other properties available including the Manhattan Place property.
Sammy sold the Manhattan Place property to Mr. Roosen. Mr. Roosen then transferred his interest to Trustee Properties, LLC. Mr. Roosen denied acting as an agent for either Mr. Behrend or Trustee Properties, LLC. Mr. Roosen “had no reason to doubt” that the Ardis who owned the Manhattan Place property was Sammy’s father. Mr. Roosen paid the filing fee for the petition for letters of administration filed by Sammy on February 14, 2006 in case No. BP096765 regarding 35th Place. Mr. Roosen also assisted in the preparation of the petition and paid the premium on a $400,000 bond. Mr. Roosen solicited and retained an attorney for Sammy in order to secure the bond.
Mr. Roosen’s declaration refers to an affidavit filed by Sammy. In that affidavit Sammy states: “I was not aware [his father] owned 35th Place. However, I was not surprised as my father had owned several properties at one time or another, both in Los Angeles and Louisiana. I did not know where most of them were located because my father had been a very secretive man.” As to the Manhattan Place property, Sammy was advised that his mother owned the parcel. Mr. Roosen described the owner as “Willie Mae Williams” which surprised Sammy. The affidavit executed by Sammy states “I was puzzled and told Mr. Roosen that my mother’s name was ‘Lottie’ . . . . I was not surprised to learn that I had an unknown stepmother because my father had married and lived with so many women I could not remember all of their names.”
In June 2007, Sammy filed a combined opposition to the two special motions to strike. Sammy conceded that he was appointed to the act as administrator of the estates. Sammy’s opposition also states, “At the time the purchase agreement was executed, [I] had no authority as the administrator of Willie Mae’s estate to sell the 35th place property to Mr. Roosen or anyone else.” Sammy opposed the special motions to strike on the ground: Keith has authority to bring the Probate Code section 850 and 859 petitions as the duly appointed administrator; the petitions are seeking to obtain property that belongs to the estates and were not an attempt to chill free speech or the right to petition; Mr. Roosen’s participation in making false statements to the court was only part of the conduct at issue in this case; and the actionable conduct was the unprivileged conduct of obtaining by extrinsic fraud improper transfers and sales of estate properties.
Keith opposed the special motions to strike on the grounds: the gravamen of the action is not a communicative act in connection with the court proceedings; the gravamen of the action is wrongfully conducting real estate transactions against the property; the litigation privilege is inapplicable to conduct involving real estate transactions which were effected independent of the probate proceeding; the litigation privilege applies to tort actions; this is an action in probate to recover wrongfully transferred and withheld estate property; and the administrator is seeking to expunge interests which are clouding title to the estates’ properties. Also, Keith presented a declaration of his attorney, Deidra L. Stauff. Ms. Stauff declared that an on-line search of records of the California Department of Real Estate shows that Mr. Behrend is a real estate broker. Those online records also demonstrate that Mr. Roosen is a real estate salesperson employed by Mr. Behrend. Ms. Stauff also ordered and received a certified copy of the Certificate of Registered Partnership of Mr. Petrie and Mr. Roosen. In reply to the oppositions, appellants argued that Sammy lacked standing to object to the special motions to strike. Appellants also asserted that: Sammy’s and Keith’s oppositions lacked evidentiary support; a Probate Code section 859 petition is the tort of punishing a person who acts without legal authority to act as an executor or administrator of a decedent’s property; and the alleged false communications made in applying to the probate court by way of extrinsic fraud in order to sell the properties are absolutely privileged.
On June 19, 2007, the probate court heard argument on the special motions to strike and took the matter under submission. The probate court sustained a number of evidentiary objections to Ms. Stauff’s declaration. However, the probate court denied the special motions to strike finding that the moving parties had not made the necessary showing that the challenged causes of action are ones arising from any protected activity. The minute order states: “That is, this court cannot find that the act or acts of which the administrator complains were taken ‘in furtherance of defendant’s right of petition or free speech . . . in connection with a public issue . . . .’ [(Code Civ. Proc., § 425.16, subd. (b)(1).] [¶] The underlying action is one specifically authorized by the Probate Code. The thrust of the underlying action is not based on activities related to petitioning this court. The gravamen of the Probate Code section 850 action is that the moving parties herein wrongfully conducted real estate transactions concerning and affecting the real property at issue. Moreover, while ‘public issue” has been defined broadly for purposes of [Code of Civil Procedure] section 425.16, it has not been defined so broadly that it would encompass this activity. [Citation.]” Appellants filed timely notices of appeal from the orders denying the special motions to strike on July 20, 2007. On September 26, 2007, we issued an order consolidating the appeals.
III. DISCUSSION
A. Appealable Orders
Sammy argues the appeals should be dismissed because they are taken from non-appealable orders pursuant to Probate Code section 1300. As Sammy concedes, however, the appeals are taken from orders denying special motions to strike which are directly appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13); Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 79.) Sammy nevertheless argues that because the special motion to strike orders not of the type enumerated in Probate Code section 1300, the special motion to strike orders are not appealable. No doubt there is abundant authority which supports the conclusion that probate orders are generally not appealable unless expressly made so by statute. (Estate of Schechtman (1955) 45 Cal.2d 50, 54; Conservatorship of Rich (1996) 46 Cal.App.4th 1233, 1235; Gertner v. Superior Court (1993) 20 Cal.App.4th 927, 930; Varney v. Superior Court (1992) 10 Cal.App.4th 1092, 1098.) But, here, there is specific statutory authority which provides for the right to directly appeal an order denying a special motion to strike. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) Accordingly, Sammy’s dismissal request lacks merit.
B. The Special Motions to Strike
1. Appellants’ contentions
Appellants claim the probate court should have granted the special motions to strike because: the conduct complained about was one that involved the judicial process and petitioning activity which facilitated the actual sale and transfer of the properties; the gravamen of the action is the issuance of the letters of administration not the transfer of the properties; the probate court’s decision incorrectly connected petitioning activity to the concept of “in connection with a public issue”; the petitions seek to impeach earlier superior court orders and to penalize them; and Keith has no probability of success on the merits in that their conduct was absolutely privileged under Civil Code section 47.
2. Special motion to strike standards
A special motion to strike may be filed in response to “‘a meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights.’” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783, quoting Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) Section 425.16, which was enacted in 1992, authorizes a court to summarily dismiss such meritless suits. (Stats.1992, ch. 726, pp. 3523-3524.) There is no requirement though that the suit be brought with the specific intent to chill the defendant’s exercise of free speech or petition rights. (Jarrow Formula, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734; Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at pp. 58-67.) The purpose of the statute was set forth in section 425.16, subdivision (a), as follows: “The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process....”
Under section 425.16, any cause of action against a person “arising from any act . . . in furtherance of the . . . right of petition or free speech . . . ” in connection with a public issue must be stricken unless the courts finds a “probability” that the plaintiff will prevail on whatever claim is involved. (§ 425.16, subd. (b)(1); Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1415; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at p. 783.) Section 425.16, subdivision (e) provides: “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 in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (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; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or 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 an issue of public interest.” In order to protect the constitutional rights of petition and free speech, the statute is to be construed broadly. (§ 425.16, subd. (a); Kibler v. Nothern Inyo County Local Hosp. Dist. (2006) 39 Cal.4th 192, 199; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119-1121.)
When a special motion to strike is filed, the trial court must consider two components. First, the moving party has the initial burden of establishing a prima facie case that the plaintiff's cause of action arose out of the defendant’s actions in the furtherance of the rights of petition or free speech. (§ 425.16, subd. (b)(1); Flatley v. Mauro (2006)39 Cal.4th 299, 314; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; Macias v. Hartwell (1997) 55 Cal.App.4th 669, 673; Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1042-1043; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App .4th at p. 784; Wilcox v. Superior Court, supra, 27 Cal.App.4th at pp. 819-821.) Section 425.16 does not apply to every claim which may have some tangential relationship to free expression or petition rights. The Supreme Court has held: “[Section 425.16] cannot be read to mean that ‘any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petition rights falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.’ [Citations.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-77, quoting Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1002, orig. italics.) Quoting from ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at page 1002, the Supreme Court in City of Cotati v. Cashman, supra, 29 Cal.4th at page 77 explained: “California courts rightly have rejected the notion ‘that a lawsuit is adequately shown to be one “arising from” an act in furtherance of the rights of petition or free speech as long as suit was brought after the defendant engaged in such an act, whether or not the purported basis for the suit is that act itself.’ [Citation.]” A defendant who meets the burden of showing the cause of action arises out of the exercise of the rights of petition or free speech has no additional burden of proving either plaintiff’s subjective intent to chill (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 74-76; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at pp. 58-68) or a chilling effect. (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 74-76.)
Second, once the defendant establishes the complaint’s claims arise out of the exercise of petition or free expression rights, the burden shifts to plaintiff. The plaintiff must then establish a probability that he or she will prevail on the merits. (§ 425.16, subd. (b)(1); Flatley v. Mauro, supra, 39 Cal.4th at p. 314; Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115; Kyle v. Carmon (1999) 71 Cal.App .4th 901, 907; Conroy v. Spitzer (1999) 70 Cal.App.4th 1446, 1450; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at pp. 784-785.) The Supreme Court has defined the probability of prevailing burden as follows: “‘[T]he plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of the facts to sustain a favorable judgment if the evidence submitted by plaintiff is credited.”’ [Citations.] (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123.)
In reviewing the trial court’s order granting the motion, we use our independent judgment to determine whether the defendants were engaged in a protected activity (Flatley v. Mauro, supra, 39 Cal.4th at pp. 325-326; Rushen v. Cohen, supra, 37 Cal.4th at p. 1055) and whether the plaintiffs met their burden of establishing a probability of prevailing on the claim. (Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1064; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 653, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) The trial court can strike one or more causes of action and permit others to remain. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928; Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150.)
3. Application of the special motion to strike standards to this case
Appellants argue that the gravamen of the petitions’ allegations is that extrinsic fraud was committed in a judicial proceeding and is protected by section 425.16 or, alternatively, is absolutely privileged under Civil Code section 47. Keith argues that the probate court correctly found the gravamen of the actions is the fraudulent sale and transfer of estate property which is unprotected activity. Sammy, an alleged co-conspirator contends the probate court properly denied the special motions to strike. We agree with Keith and Sammy that the probate court properly denied the special motions to strike the petitions.
When the moving and opposition papers are considered with the petitions, we conclude that the present case does not arise from free speech or petitioning activity. The first amended petitions alleged that Sammy and appellants conspired to deprive the estate of properties by falsely claiming according to the petitions Sammy was an heir of Willie Mae and Ardis. In furtherance of that conspiracy, Sammy and Mr. Roosen are alleged to have appeared in the probate court to obtain letters of administration. Sammy was named as the administrator. The petitions further allege, however, that Sammy, Mr. Roosen, Mr. Behrend, Trust Properties, LLC and Mr. Petrie then sold and transferred estate properties without the legal right to do so. Probate Code section 850 provides in part: “(a) The following persons may file a petition requesting that the court make an order under this part: … [¶] (2) The personal representative or any interested person in any of the following cases: … (C) Where the decedent died in possession of, or holding title to, real or personal property, and the property or some interest therein is claimed to belong to another.” Probate Code section 859 provides: “If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to the estate of a decedent, conservatee, minor, or trust, the person shall be liable for twice the value of the property recovered by an action under this part. The remedy provided in this section shall be in addition to any other remedies available in law to a trustee, guardian or conservator, or personal representative or other successor in interest of a decedent.” The Probate Code sections 850 and 859 petitions sought relief and damages based on the alleged unauthorized transactions related to the estates’ properties.
Thus, the gravamen of the petitions is the wrongful taking and encumbering of the properties that belong to the estates; it is not the fact that the conspirators appeared in or made false statements in court. Furthermore, the result is not different because there are allegations that Sammy and Mr. Roosen admittedly utilized the probate court to obtain fraudulent letters of administration. Rather, the predicate wrong in this case is that there were unauthorized transactions to deprive the estates of their properties allowing the estate to petition the court to establish title to the property and subjecting appellants to liability under Probate Code sections 850 and 859, respectively. The gravamen or substance of the petitions is that appellants conspired to wrongfully take and encumber estate properties. The letters of administration were at the most tangential to the alleged conspiracy to wrongfully deprive two estates of property. The fact that the parties may have appeared in court in order to further their alleged conspiracy does not mean that the activity is protected as free speech or that the right to petition has been chilled. As a result, the conspirators’ conduct is not protected as acts to further free speech or the right to petition simply because they ultimately utilized court processes to obtain fraudulent letters of administration to pursue their real aim which was to wrongfully deprive the estates of property. (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 79-81; Visher v. City of Malibu (2005) 126 Cal.App.4th 364, 370; San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn (2004) 125 Cal.App.4th 343, 353; Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179, 1185; Brenton v. Metabolife Intern., Inc. (2004) 116 Cal.App.4th 679, 687; Moore v. Shaw (2004) 116 Cal.App.4th 182, 194-197; Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 630; Beach v. Harco National. Ins. Co. (2003) 110 Cal.App.4th 82, 94; Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 1317-1318; Gallimore v. State Farm & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1399; State Farm General Ins. Co. v. Marjorino (2002) 99 Cal.App.4th 974, 977.) Because appellants failed to demonstrate that their conduct is a protected activity, the burden of proof did not shift to Keith to prove a probability of success of the merits. We thus do not reach the second prong of the analysis.
IV. DISPOSITION
The orders denying the special motions to strike are affirmed. Keith Williams as the administrator of the estates of Willie Mae and Ardis Williams is awarded costs on appeal jointly and severally from appellants, David Behrend, Trustee Properties, LLC and Victor Roosen.
We concur: ARMSTRONG, J., MOSK, J.