Opinion
NOT TO BE PUBLISHED
APPEALS from an order of the Superior Court of Los Angeles County, No. BC332914, William F. Highberger, Judge.
Good, Wildman, Hegness & Walley, Gary A. Dapelo; Snell & Wilmer and Richard A. Derevan for Plaintiffs, Cross-defendants and Appellants.
Greenberg Traurig, Scott D. Bertzyk and Karin L. Bohmholdt for Defendant, Cross-complainant and Appellant.
DOI TODD, Acting P. J.
Defendant, cross-complainant and appellant L.A. Pacific Center, Inc. (appellant) appeals from an order granting in part a special motion to strike a cross-complaint under the “anti-SLAPP statute” (Code Civ. Proc., § 425.16) brought by plaintiffs, cross-defendants and appellants Hotels Nevada LLC, Inns Nevada LLC and Louis Habash (sometimes collectively Hotels Nevada). In turn, Hotels Nevada cross-appeals from the portion of the order denying in part the special motion to strike.
SLAPP is an acronym for strategic lawsuits against public participation. Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
We affirm. The trial court properly granted the motion to strike the three tort claims alleged in the cross-complaint. Hotels Nevada met its burden to demonstrate that the tort claims arose from protected activity, and appellant failed to meet its burden to show that it had a probability of prevailing on those claims, as they were barred by the litigation privilege set forth in Civil Code section 47, subdivision (b). The trial court properly denied the motion as to the fourth cause of action for indemnity, as Hotels Nevada failed to meet its burden to show that claim arose from protected activity.
FACTUAL AND PROCEDURAL BACKGROUND
Facts Underlying the Original Dispute.
In Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754 (Hotels Nevada) we reversed an order denying appellant’s petition to compel arbitration, concluding that the trial court should have held an evidentiary hearing before ruling on the petition. The dispute stemmed from the sale of two properties from Hotels Nevada to appellant—the Alexis Park Hotel and the American Inn Apartments in Las Vegas, Nevada (the property). According to Hotels Nevada’s May 2005 complaint (California complaint), in early 2004 the parties agreed on a purchase price of $75 million for the property. At appellant’s request, Louis Habash (Habash), Hotels Nevada’s principal, also agreed to a holdback provision whereby appellant would be permitted to hold back $5 million of the purchase price for a period of 12 months. The holdback provision was memorialized as section 2.06(b) of the written purchase and sale agreement (Agreement). The parties further agreed to prepare and record a memorandum of agreement (Memorandum), which would provide notice of the transaction, including appellant’s obligation to repay the $5 million holdback within 12 months. (Hotels Nevada, supra, 144 Cal.App.4th at pp. 758–759.)
Further, according to the California complaint, at a March 2004 meeting to sign the Agreement and Memorandum, appellant informed Habash of its desire to extend the holdback period from 12 months to 60 months. Habash declined and left the meeting without signing either the Agreement or the Memorandum. Appellant immediately relented and agreed to retain the 12-month holdback period. Habash returned to the attorneys’ offices and signed two originals of the Agreement and Memorandum after confirming that they both contained a 12-month holdback period. The next day, Hotels Nevada’s counsel received a copy of the fully executed documents which, again, contained the 12-month holdback period. (Hotels Nevada, supra, 144 Cal.App.4th at p. 759.)
In May 2004, Hotels Nevada’s attorney received a copy of the recorded Memorandum from the escrow officer, at that point unaware it contained a 60-month holdback provision. Hotels Nevada allegedly learned of the 60-month holdback in April 2005, when it sought to enforce the 12-month obligation under the Agreement. At an April 2005 meeting, appellant presented Habash with a copy of the recorded Memorandum, which contained the 60-month holdback provision, and a document that he represented was page 12 of the Agreement, which also contained a 60-month holdback provision. Hotels Nevada alleged it had not previously seen any version of the Agreement or Memorandum containing a 60-month holdback provision. (Hotels Nevada, supra, 144 Cal.App.4th at p. 759.)
Hotels Nevada’s Complaints and Notices of Lis Pendens.
On May 4, 2005, Hotels Nevada filed the California complaint against appellant, alleging causes of action for rescission based on fraud, cancellation of written instruments based on illegality and conspiracy. Simultaneously, Hotels Nevada filed notices of lis pendens (California lis pendens), identifying notices of the pending action it had recorded against the property. In August 2005, the trial court denied appellant’s petition to compel arbitration; in October 2005, Hotels Nevada filed amended notices of lis pendens adding that order. In November 2006, we issued our decision reversing the trial court’s order denying appellant’s petition to compel arbitration.
Before our decision, in January 2006, the trial court granted appellant’s motion to expunge lis pendens. It expressly premised its order on section 405.33, ruling that appellant carried its burden under that provision “to establish that all lis pendens recorded in connection with this action should be expunged on the grounds that, regardless of any probable validity of Plaintiffs’ real property claim, adequate relief can be secured by the giving of an undertaking . . . .” It ordered appellant to file an undertaking in the amount of $5 million. Appellant complied in February 2006.
Three days before the expungement order, Hotels Nevada filed a verified complaint in Nevada against appellant (Nevada complaint), alleging causes of action for quiet title, appointment of a receiver, rescission based on fraud, cancellation of written instruments based on illegality, civil conspiracy and intentional interference with prospective economic advantage. The Nevada complaint was premised on the same facts alleged in the California complaint. According to Hotels Nevada, the purpose of this second action was to assert a real property claim—via a cause of action to quiet title—in response to appellant’s contention in its motion to expunge the California lis pendens that the California complaint contained no real property claim. Concurrently with the Nevada complaint, Hotels Nevada filed three notices of lis pendens in Nevada (Nevada lis pendens).
In March 2006, the Nevada court denied appellant’s motion to expunge lis pendens. Thereafter, in May 2006 it denied appellant’s motion to dismiss or stay the action on the Nevada complaint. In August 2006 the court denied appellant’s motion to compel arbitration of the Nevada complaint.
Appellant’s Cross-Complaint.
In April 2006, appellant filed a cross-complaint against Hotels Nevada alleging causes of action for abuse of process, slander of title, intentional interference with contractual obligations and indemnity (cross-complaint). Appellant alleged that following its purchase of the property, it acquired an adjoining parcel, secured gaming zoning, secured approval for increased building height allowances and worked with architects and planners to develop a hotel and casino resort. These actions enhanced the value of the property which appellant then planned to sell. In support of the first three causes of action, the cross-complaint alleged that Hotels Nevada sought a return of the property based on false allegations of fraud in the complaint. It further alleged that Hotels Nevada sought to impede the sale of the property by recording the California lis pendens in connection with the California complaint and by filing the Nevada complaint together with the subsequent Nevada lis pendens. According to the cross-complaint, “[t]he filing of the California Lis Pendens and the Nevada Lis Pendens had the desired effect of completely derailing and preventing L.A. Pacific from consummating the pending sale of the Project due to the inability to provide clear title to the proposed buyer because of the California Lis Pendens and the Nevada Lis Pendens.”
With respect to the indemnity cause of action, appellant alleged that in March 2006 Resort Properties of America (RPA) filed an action against it (RPA action) for quantum meruit, unjust enrichment, breach of oral agreement, accounting and constructive trust alleging that appellant had promised RPA “‘would be taken care of’” in the event there was a transfer of title to the property. RPA sought to recover a $2 million broker’s commission. Appellant alleged that RPA was not its broker, but rather, served as Hotels Nevada’s broker for the property and that the RPA action was filed in furtherance of Hotels Nevada’s wrongful conduct. Appellant sought indemnity for costs and fees incurred in connection with the RPA action from Hotels Nevada on the basis of an indemnity provision in the Agreement.
Hotels Nevada refiled the same cross-complaint in January 2007, after we issued the Hotels Nevada decision, in response to appellant’s contention that the matter had been automatically stayed during the pendency of the appeal.
Hotels Nevada’s Special Motion to Strike.
In January 2007, Hotels Nevada filed a special motion to strike the cross-complaint pursuant to section 425.16 (motion to strike). It asserted that the cross-complaint should be stricken because it arose from the constitutionally-protected right to petition; it further asserted that appellant could not meet its burden to show the cross-complaint was legally and factually sufficient in view of the Nevada court’s rulings denying appellant’s motion to dismiss and expunge lis pendens. In support of the motion to strike, Hotels Nevada filed a request for judicial notice of numerous pleadings, orders, deposition transcripts and other documents filed in connection with the California complaint, the Nevada complaint and the cross-complaint.
Appellant opposed the motion to strike. As to all causes of action except indemnity, appellant argued that because section 425.16 was not designed to protect illegal activity, it did not apply to Hotels Nevada’s recording a lis pendens in Nevada after the expungement order in California—an act appellant characterized as unauthorized as a matter of law. As to the indemnity cause of action, it argued that a motion to strike was inapplicable because Hotels Nevada was not the petitioning party. Alternatively, it argued that even if the claims in the cross-complaint arose from protected activity, it met its burden to come forward with sufficient evidence to overcome the motion to strike by demonstrating a prima facie case of prevailing on the claims. Appellant filed a “compendium of exhibits” which included contracts, memos, e-mails and deposition excerpts, as well as a request for judicial notice in support of its opposition. In addition, it filed a “compendium of declarations” which included declarations previously submitted in the case. It also objected to Hotels Nevada’s judicial notice request to the extent it included exhibits that were not previously attached to filed pleadings.
Following a February 8, 2007 hearing, the trial court granted the motion to strike as to the first through third causes of action in the cross-complaint and denied the motion as to the fourth cause of action for indemnity. At the hearing, the trial court explained that the first three causes of action addressed conduct squarely within section 425.16. Turning to the question of whether appellant could demonstrate a probability of prevailing, the trial court stated: “[A]s to the theories of the first three causes of action, they all essentially are attacks on matters as to which I believe California’s litigation privilege applies. We have a relatively broad litigation privilege as compared to some jurisdictions. Therefore, I don’t think it’s a matter of much subtlety or uncertainty to determine that the cross-defendant’s SLAPP motion on the merits has to be granted as to the first through the third causes of action.” With respect to the fourth cause of action, the trial court ruled that the conduct alleged fell within section 425.16, but that appellant made a prima facie showing that the Agreement would require indemnification under the circumstances alleged.
Appellant appealed the partial granting of the motion to strike and Hotels Nevada cross-appealed from the partial denial of the motion.
DISCUSSION
Appellant contends that the trial court erred in finding that the tort causes of action arose from protected activity because the recording of the Nevada lis pendens—a key factual basis for the claims—was illegal as a matter of law. Alternatively, it contends the motion to strike was improperly granted because it demonstrated a probability of prevailing on each of the claims. We find no merit to either contention. Likewise, we find no merit to Hotels Nevada’s contention that the trial court erred in denying the motion as to the indemnity cause of action. That claim did not arise from activity protected by section 425.16.
I. The Anti-SLAPP Statute and the Standard of Review.
The anti-SLAPP statute is aimed at curbing “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a); Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738–739 (Jarrow).) The statute provides in relevant part: “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 or 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.” (§ 425.16, subd. (b)(1).) An act “in furtherance of” the right to petition includes “any written or oral statement or writing made before a . . . judicial proceeding”; “any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body . . .”; and any “conduct in furtherance of the exercise of the constitutional right of petition . . . .” (§ 425.16, subd. (e)(1), (2), (4).)The anti-SLAPP statute applies to cross-complaints as well as to complaints. (§ 425.16, subd. (h); Jarrow, supra, at p. 735, fn. 2.)
There are two components to a motion to strike brought under section 425.16. Initially, the party challenging the lawsuit has the threshold burden to show that the cause of action arises from an act in furtherance of the right of petition or free speech. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Once that burden is met, the burden shifts to the complaining party to demonstrate a probability of prevailing on the claim. (Zamos v. Stroud, supra, at p. 965; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76 (Cotati).) To satisfy the latter prong, 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.’” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; see also DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 568 [to establish a probability of prevailing, a plaintiff must substantiate each element of the alleged cause of action through competent, admissible evidence].) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
We independently review the record to determine both whether the asserted causes of action arise from the defendant’s free speech or petition activity, and, if so, whether the plaintiff has shown a probability of prevailing. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
Our independent review does not encompass matters that were not before the trial court at the time of the motion to strike. “It is an elementary rule of appellate procedure that, when reviewing the correctness of a trial court’s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.” (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813; accord, People v. Welch (1999) 20 Cal.4th 701, 739 [“We review the correctness of the trial court’s ruling at the time it was made, however, and not by reference to evidence produced at a later date”].) Though we granted appellant’s request to take judicial notice of pleadings and other documents relating to events that occurred after the trial court ruled on the motion to strike, we do not rely on them in deciding the instant matter. (Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162, 1173, fn. 11.)
II. The Trial Court Properly Granted the Special Motion to Strike as to the First Through Third Causes of Action in the Cross-Complaint.
A. Protected Activity.
The court in Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467 recently summarized what a party bringing a special motion to strike must show to meet its threshold burden, explaining, “‘the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.’ [Citation.] ‘“The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” [Citation.]’ [Citation.] Section 425.16 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,”’ to include statements or writings before a judicial proceeding, or any other official proceeding authorized by law and statements or writings made in connection with an issue under consideration or review by a judicial body. [Citations.] ‘Thus, statements, writings and pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and that statute does not require any showing that the litigated matter concerns a matter of public interest. [Citations.]’ [Citation.] Nor need defendants or cross-defendants bringing an anti-SLAPP motion prove the suit was intended to or actually did chill their speech. [Citations.]” (Id. at p. 1478.)
Applying these principles, we conclude the trial court properly determined that appellant’s three tort causes of action arose from protected activity. The first cause of action for abuse of process was premised on the filing of the California complaint and the Nevada complaint. The cross-complaint alleged: “Plaintiffs and Habash willfully, intentionally and knowingly fabricated allegations of fraud in their Complaint in the California Action and in their Complaint in the Nevada Action, including, among other things, falsely contending that L.A. Pacific’s representatives surreptitiously, willfully and intentionally altered the Agreement and Memorandum to represent that the purportedly manufactured and altered documents were the true agreements made by the parties.” According to the first cause of action: “Plaintiffs’ and Habash’s aforementioned use of the legal process was for an improper purpose; in that, Plaintiffs filed and pursued this action in order to, among other things, improperly impede and derail L.A. Pacific’s ability to consummate the pending sale of the Property or otherwise deal with its property, and to extort money from L.A. Pacific.” Appellant alleged it had been damaged by Hotels Nevada’s “improper use of the legal process . . . .”
As explained in Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056, “any act” in furtherance of a person’s right of petition under section 425.16 “includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.]” That the civil actions were alleged to have been brought for an improper purpose does not change the analysis. The tort of abuse of process is the use of the court’s processes for an ulterior motive. (Rusheen v. Cohen, supra, at p. 1056; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1014.) The tort’s essence “‘lies in the misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice.’ [Citations.]” (Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1822; see also ComputerXpress, Inc. v. Jackson, supra, at p. 1014 [the tort of abuse of process “‘requires a misuse of a judicialprocess’”].) The inherent nature of the tort, therefore, arises from acts in the context of a judicial proceeding in furtherance of a person’s right of petition or free speech and, as a result, falls within the purview of the anti-SLAPP statute. (§ 425.16, subds. (e)(1) & (e)(2); see, e.g., Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570 [abuse of process cause of action subject to the anti-SLAPP statute because it arose from the exercise of the right to petition]; see also Jarrow, supra, 31 Cal.4th at p. 736, fn. 6 [noting Legislature was aware in adopting and amending anti-SLAPP statute that abuse of process claims were some of the most frequent SLAPP suits].) Accordingly, appellant’s abuse of process claim based on allegations that Hotels Nevada misused the legal process in filing the complaints arose from activity protected under the anti-SLAPP statute.
Turning to the second cause of action for slander of title and third cause of action for intentional interference with contractual relations—claims which appellant has consistently analyzed in tandem—appellant alleged that Hotels Nevada “willfully, intentionally and knowingly fabricated and published allegations of fraud” in the California complaint and the Nevada complaint; that Hotels Nevada fabricated copies of documents, including the Agreement and Memorandum, and “used and submitted the documents that the[y] altered and fabricated to the Court in support of their false allegations and claims”; and that Hotels Nevada “in bad faith and with an improper purpose recorded and published the California Lis Pendens and the Nevada Lis Pendens.” Appellant further alleged that these actions derailed the pending sale of the property and inhibited and precluded it from dealing with any other potential purchasers of the property.
In connection with these claims, the question becomes whether Hotels Nevada’s conduct in filing the lis pendens involved acts taken in furtherance of its right of petition or free speech. A lis pendens, or, as known in modern usage, a “notice of pendency of action,” is a notice that an action is pending in which a cause of action would, if meritorious, affect title to or the right to possession of specific real property described in the pleading. (§§ 405.2, 405.4.) “[T]he recordation of a notice of lis pendens is in effect a republication of the pleadings.” (Albertson v. Raboff (1956) 46 Cal.2d 375, 379.) Thus, when Hotels Nevada recorded both the California lis pendens and the Nevada lis pendens, it filed written notices of lis pendens in connection with the California complaint and the Nevada complaint, respectively.
Section 425.16, subdivision (e)(2) explains that for purposes of the statute, 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’ includes . . . any written . . . statement . . . made in connection with an issue under consideration or review by a . . . judicial body.” The recordation of a lis pendens falls within this definition and therefore arises from the exercise of the right of petition. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1285 [filing of a notice of lis pendens in superior court was a writing made in a judicial proceeding squarely covered by section 425.16]; see also Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056 [“‘[a] cause of action “arising from” defendant’s litigation activity may appropriately be the subject of a section 425.16 motion to strike’”].) Because the alleged slander of title and interference with contractual relations claims were based on the recordation of the lis pendens, they were subject to the anti-SLAPP statute.
The trial court properly rejected appellant’s assertion—renewed on appeal—that the recordation of the Nevada lis pendens did not constitute protected activity because it was illegal as a matter of law. In Flatley v. Mauro (2006) 39 Cal.4th 299, the court held that the activity protected by section 425.16 did not include extortion because such petitioning activity was illegal as a matter of law. The court concluded “that where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of the defendant’s exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.” (Flatley v. Mauro, supra, at p. 320.) Appellant has the burden of conclusively establishing illegality: “‘[C]onduct that would otherwise come within the scope of the anti-SLAPP statute does not lose its coverage . . . simply because it is alleged to have been unlawful or unethical.’ [Citations.]” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 285.)
Appellant contends that the recording of the Nevada lis pendens violated section 405.36, which provides: “Once a notice of pending action has been expunged, the claimant may not record another notice of pending action as to the affected property without leave of the court in which the action is pending.” Because it was undisputed that Hotels Nevada did not seek leave from the trial court in California before recording its Nevada lis pendens in connection with the Nevada complaint, appellant asserts that the recordation of the Nevada lis pendens was illegal as a matter of law.
Given the procedural posture of the case at the time of the motion to strike, however, we cannot say that appellant conclusively established the illegality of the Nevada lis pendens. At the same time Hotels Nevada filed the Nevada complaint, it recorded the Nevada lis pendens in accordance with Nevada Revised Statutes section 14.010, which provides in relevant part that “[i]n an action for the foreclosure of a mortgage upon real property, or affecting the title or possession of real property, the plaintiff, at the time of filing the complaint, . . . shall record with the recorder of the county in which the property, or some part thereof, is situated, a notice of the pendency of the action, . . . .” Thereafter, appellant moved in Nevada to expunge the Nevada lis pendens on the grounds that the California expungement order operated as collateral estoppel and that expungement was required under Nevada law, specifically Nevada Revised Statutes section 14.015. The motion outlined the proceedings that had occurred in California in connection with the California complaint and the California lis pendens. The Nevada court denied the motion to expunge in March 2006.
Nevada Revised Statutes section 14.015 states in part: “1. After a notice of pendency of an action has been recorded with the recorder of the county, the defendant . . . may request that the court hold a hearing on the notice, and such a hearing must be set as soon as is practicable, taking precedence over all other civil matters except a motion for a preliminary injunction. [¶] 2. Upon 15 days’ notice, the party who recorded the notice of pendency of the action must appear at the hearing and, through affidavits and other evidence which the court may permit, establish to the satisfaction of the court that: [¶] (a) The action is for the foreclosure of a mortgage upon the real property described in the notice or affects the title or possession of the real property described in the notice; [¶] (b) The action was not brought in bad faith or for an improper motive; [¶] (c) He will be able to perform any conditions precedent to the relief sought in the action insofar as it affects the title or possession of the real property; and [¶] (d) He would be injured by any transfer of an interest in the property before the action is concluded. [¶] 3. In addition to the matters enumerated in subsection 2, the party who recorded the notice must establish to the satisfaction of the court either: [¶] (a) That he is likely to prevail in the action; or [¶] (b) That he has a fair chance of success on the merits in the action and the injury described in paragraph (d) of subsection 2 would be sufficiently serious that the hardship on him in the event of a transfer would be greater than the hardship on the defendant resulting from the notice of pendency, and that if he prevails he will be entitled to relief affecting the title or possession of the real property. [¶] 4. The party opposing the notice of the pendency of an action may submit counter-affidavits and other evidence which the court permits. [¶] 5. If the court finds that the party who recorded the notice of pendency of the action has failed to establish any of the matters required by subsection 2, the court shall order the cancellation of the notice of pendency and shall order the party who recorded the notice to record with the recorder of the county a copy of the order of cancellation. The order must state that the cancellation has the same effect as an expungement of the original notice.”
Appellant then brought a motion to reconsider and/or clarify the Nevada court’s ruling, which the Nevada court also denied. Finally, appellant brought a motion seeking to require Hotels Nevada to post a bond to maintain the Nevada lis pendens, or alternatively, offering to post a bond to cancel the lis pendens. The Nevada court denied the motion, stating unambiguously in its order that it found no basis to expunge the Nevada lis pendens: “Defendants’ first Motion to Expunge Lis Pendens was denied by this Court on March 29, 2006. This Court denied Defendants’ Motion to Reconsider on June 1, 2006. Defendants filed the subject Motion on August 17, 2006, seeking again an order expunging the lis pendens. [¶] Plaintiffs have met their burden under NRS 14.015. A bond would not provide adequate security in this case. Good cause appearing.”
Article IV, section 1, of the United State Constitution requires that full faith and credit must be accorded sister state judgments unless the rendering court lacked jurisdiction. As explained in Washoe Development Co. v. Guaranty Federal Bank (1996) 47 Cal.App.4th 1518, 1521: “‘[A] judgment entered by one state must be recognized by another state if the state of rendition had jurisdiction over the parties and the subject matter and all interested parties were given reasonable notice and opportunity to be heard.’ [Citations.]” (See also In re Marriage of Hanley (1988) 199 Cal.App.3d 1109, 1119 [sister state judgments and orders must be accorded full faith and credit].) There is no question that the Nevada court had jurisdiction, as the property in dispute was located in Nevada. (See, e.g., Shaffer v. Heitner (1977) 433 U.S. 186, 207.) Pursuant to the Nevada court orders—which appear to be final on the basis of the record before us—the Nevada lis pendens satisfied state law statutory requirements. These rulings preclude us from determining that recordation of the Nevada lis pendens was illegal as a matter of law because Hotels Nevada did not seek leave of court in California.
Indeed, the Nevada court orders expressly approving the recordation of the Nevada lis pendens distinguish this case from those relied on by appellant. For example, the facts in Ranchito Ownership Co. v. Superior Court (1982) 130 Cal.App.3d 764, 770–772, fall squarely within section 405.36, as the plaintiffs there recorded a second notice of lis pendens after the trial court granted a motion to expunge the first lis pendens in the same action. In finding the second lis pendens unauthorized, the court expressly distinguished Rebco Development, Inc. v. Superior Court (1977) 67 Cal.App.3d 13, a case involving circumstances akin to those here. There, the trial court granted a motion to expunge a notice of lis pendens on the ground that adequate relief could be secured by an undertaking. (Id. at pp. 15–16.) The Court of Appeal reversed the order expunging a second notice of lis pendens recorded against the same property in a separate action, finding that the issues determined in the first expungement hearing did not resolve those raised in the separate action. (Id. at pp. 16–17.)
The other cases on which appellant relies are similarly inapposite, addressing situations, unlike here, where courts have found no basis for the recordation of a second notice of lis pendens. (See Miller v. R. K. A. Management Corp. (1979) 99 Cal.App.3d 460, 465 [noting in procedural history that the federal court had expunged a second notice of lis pendens on the ground that the court lacked subject matter jurisdiction]; Santopadre v. Pelican Homestead & Sav. Ass’n (5th Cir. 1991) 937 F.2d 268, 274 [doctrine of collateral estoppel prevented the plaintiff from recording a second notice of lis pendens in federal court action following expungement in state court action]; Richardson v. Dallas R. Hall & Associates (N.D.Cal. 1996) [1996 WL 308261, p. 2] [federal court expunged second notice of lis pendens because the plaintiff did not obtain leave of court in prior state court action or instant federal court action]; Coury v. Tran (1995) 111 Nev. 652, 656 [895 P.2d 650] [second notice of lis pendens properly expunged pursuant to N.R.S. § 14.017 which allows “absolute and complete transferability of real property after the withdrawal or cancellation of a notice of the pendency of an action affecting the property”].) Appellant has not directed us to any authority—nor have we independently located such authority—suggesting that a court which has expunged an initial lis pendens has any authority to determine the validity of second lis pendens recorded in connection with a separate action filed in another jurisdiction, particularly where the court in the separate action has ruled it was properly recorded.
Accordingly, the Nevada lis pendens was not illegal as a matter of law and its recordation constituted protected activity under the anti-SLAPP statute.
B. Appellant Failed to Demonstrate a Probability of Prevailing.
Given our conclusion that Hotels Nevada met its burden of showing that the first three causes of action in the cross-complaint arose from protected activity, we must turn to the second step of the inquiry and ask whether appellant demonstrated a probability of prevailing on the claims. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) The trial court ruled that appellant failed to demonstrate any probability of prevailing because the three causes of action were attacks on matters covered by California’s litigation privilege. (See Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1485 [“The litigation privilege is ‘relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing’”].) We agree with the trial court’s conclusion.
Civil Code section 47, subdivision (b) defines a “privileged publication” as including one made “[i]n any . . . judicial proceeding . . . .” “[T]he privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have [sic] some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) “The purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation.” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1063; accord, Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955.) “To further these purposes, the privilege has been broadly applied. It is absolute and applies regardless of malice. [Citations.]” (Jacob B. v. County of Shasta, supra at p. 955.) “Although originally enacted with reference to defamation actions alone [citation], the privilege has been extended to any communication, whether or not it is a publication, and to all torts other than malicious prosecution. [Citations.]” (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 29.) The privilege applies “even though the publication is made outside the courtroom and no function of the court or its officers is involved.” (Silberg v. Anderson, supra, at p. 212.)
The alleged acts supporting appellant’s tort claims in the cross-complaint were privileged publications. Appellant’s claims were premised on the filing of the California complaint and the Nevada complaint and the recording of the California lis pendens and the Nevada lis pendens. With respect to the filing of the complaints, the court in Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1249, stated unequivocally: “We contemplate no communication that is more clearly protected by the litigation privilege than the filing of a legal action.” (Accord, Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 774 [“The acts involved in filing a formal legal complaint . . . are all part of its publication, and are privileged to the extent its contents are privileged”]; cf. Carden v. Getzoff (1987) 190 Cal.App.3d 907, 913 [litigation privilege applies to defeat tort actions based on privileged publications but grounded in various theories of liability, including abuse of process, inducing breach of contract and interference with prospective economic advantage].)
Generally, the recordation of a lis pendens is, likewise, absolutely privileged. (Albertson v. Raboff, supra, 46 Cal.2d at p. 379; Woodcourt II Limited v. McDonald Co. (1981) 119 Cal.App.3d 245, 249–250.) The only exception to this general principle is set forth in Civil Code section 47, subdivision (b)(4) (added after the above decisions), which provides: “A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law.” Thus, in order to be privileged under Civil Code section 47, subdivision (b), a notice of lis pendens must both (1) identify a specific action “previously filed” with the trial court and (2) show that the previously-filed action affects “the title or right of possession of real property.”
Here, both the California lis pendens and the Nevada lis pendens identified actions previously filed with courts of competent jurisdiction. The Nevada lis pendens satisfied the second element of affecting title to real property, as the Nevada complaint included a cause of action to quiet title. The California lis pendens also satisfied the second element. The trial court expressly declined to grant appellant’s motion to expunge on the ground that the California complaint failed to state a claim affecting title to real property. Actions that affect title to or possession of real property include not only those to quiet title, but also claims to rescind an agreement for purchase and sale of real property (Wilkins v. Oken (1958) 157 Cal.App.2d 603, 606) and to cancel a deed or other instrument affecting real property rights (Martin v. Lawrence (1909) 156 Cal. 191, 193). (See Cal. Lis Pendens Practice (Cont.Ed.Bar 1983) Preparation and Recording, § 2.7, pp. 30–31.) Hotels Nevada’s claims for rescission and cancellation of written instruments were sufficient to bring the recordation of the California lis pendens within the protection afforded by Civil Code section 47, subdivision (b).
The existence of claims affecting title to real property distinguishes this action from Palmer v. Zaklama (2003) 109 Cal.App.4th 1367 (Palmer), a case on which appellant relies. There, the court held that the privilege afforded by Civil Code section 47, subdivision (b), did not attach to the recordation of a lis pendens because the underlying collections and bankruptcy actions did not allege real property claims. (Palmer, supra, at p. 1381.) More specifically, the court noted that the appellant’s attorney “effectively conceded the collections action was not one in which it was appropriate to record a lis pendens” because it was essentially an action for money damages. (Ibid.) Nor did the bankruptcy action involve a claim affecting title to real property, given “there [wa]s no evidence the trustee in the bankruptcy action actually attempted to set aside the sheriff’s sale as a preferential transfer.” (Ibid.) Here, in contrast, both of the actions brought by Hotels Nevada alleged real property claims.
Appellant’s primary argument as to why the litigation privilege should not apply focuses on Hotels Nevada’s motivation in initiating litigation. Appellant asserts that Hotels Nevada’s filing multiple lawsuits and recording multiple lis pendens must have been done to prevent it from realizing the profits it stood to gain from the sale of the property. But as aptly recognized in Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th at p. 1490, “‘it is now well established that the litigation privilege applies without regard to “motives, morals, ethics or intent.” [Citation.] The litigation privilege is simply a test of connectedness or logical relationship to litigation. [Citation.]’ [Citation.]” (See also Rusheen v. Cohen, supra, 37 Cal.4th at p. 1058 [“The privilege has been applied specifically in the context of abuse of process claims alleging the filing of false or perjurious testimony or declarations”]; Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 921 [“‘communications made in connection with litigation do not necessarily fall outside the privilege merely because they are, or are alleged to be, fraudulent, perjurious, unethical, or even illegal’ assuming they are logically related to litigation”].) Applying these principles, the Feldman court found the privilege applicable to threats of litigation and settlement demands, regardless of whether the statements were nothing more than a negotiating tactic. (Feldman v. 1100 Park Lane Associates, supra, 160 Cal.App.4th 1467; see also Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 642–643 [litigation privilege applied both to presentation of a forged will in a judicial proceeding and to the actual act of forgery in preparing that document].)
Thus, regardless of Hotels Nevada’s motive or intent in filing its complaints and notices of lis pendens, the trial court properly ruled that actions which formed the basis of appellant’s tort causes of action were privileged. The complaints and notices of lis pendens in California and Nevada were communications made in a judicial proceeding by the litigants, designed to achieve the objects of litigation and logically connected to the action. (Silberg v. Anderson, supra, 50 Cal.3d at p. 212.) Because of the privilege afforded by Civil Code section 47, subdivision (b), appellant could not demonstrate a probability of prevailing and the trial court properly granted the motion to strike as to the three tort causes of action in the cross-complaint.
III. The Trial Court Properly Denied the Special Motion to Strike as to the Fourth Cause of Action in the Cross-Complaint.
Hotels Nevada cross-appealed from the denial of the motion to strike as to the fourth cause of action for indemnity. The trial court ruled that although the indemnity claim involved protected activity to the extent the evidence showed Hotels Nevada was involved in RPA’s filing its suit against appellant, appellant met its burden to show a probability of prevailing on the indemnity claim. We agree with the trial court’s result, but for the reason that the fourth cause of action did not arise from activity protected by section 425.16. (See, e.g., ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1268 [appellate court “‘may affirm a trial court judgment on any [correct] basis presented by the record whether or not relied upon by the trial court,’” as “‘a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason’”].)
Appellant has requested sanctions, asserting that the cross-appeal is frivolous or filed solely for the purpose of delay. (See section 907; Cal. Rules of Court, rule 8.276(e).)
In the cross-complaint’s fourth cause of action, appellant sought indemnity from Hotels Nevada for fees and costs incurred in defending the action for brokerage fees brought by RPA. Appellant alleged: “The action by RPA against L.A. Pacific is a claim that falls squarely within the scope of the indemnity provision in Section 10 of the Agreement, obligating Plaintiffs to indemnify L.A. Pacific in its defense of the RPA action.” It further alleged “that RPA’s actions in pursuing the RPA Action are in furtherance of Plaintiff’s and Habash’s wrongful efforts to extort L.A. Pacific and abuse the process of this Court.” According to the cross-complaint, RPA was formerly Hotels Nevada’s broker and had brought suit against Hotels Nevada for a commission arising from the sale of the property. In opposition to the motion to strike, appellant submitted evidence of Hotels Nevada’s and RPA’s settlement in that action. It also offered counsel’s declaration as evidence that Hotels Nevada had declined to indemnify it for fees and costs incurred in defending the RPA action.
Captioned “Brokerage Fees,” section 10 of the Agreement stated: “Each party hereto agrees to indemnify and hold the other harmless from the payment of any fees, compensation or expenses to any Person which may be required by reason of any agreement or purported agreement for the payment of such fees by the indemnifying party. Seller agrees to indemnify and hold Buyer harmless from the payment of any fees, compensation or expenses to any Person, including without limitation, Hotel Financial Services and/or Steve Gold and/or MAXIM Hotel Brokers and/or Harry Pflueger which may be required by reason of any agreement or purported agreement for the payment of such fees by Seller.”
Hotels Nevada challenges the trial court’s denial of the motion on the ground that appellant could not have shown a probability of prevailing under this provision. In the RPA action, RPA sought recovery on the basis of appellant’s repeated promises to RPA that it would be “taken care of” in the event of a transfer of title to the property. According to Hotels Nevada, a plain reading of section 10 of the Agreement demonstrates that Hotels Nevada agreed to indemnify appellant for brokerage fees owed by reason of an agreement between it and a broker—not by reason of fees owed by reason of an agreement between appellant and a broker.
We need not reach the question of whether appellant demonstrated a probability of prevailing, however, as Hotels Nevada failed to meet its initial burden to show that the fourth cause of action for indemnity arose from protected activity. In asserting that the indemnity claim fell within the anti-SLAPP statute, Hotels Nevada argued in its motion to strike that “[t]he essence of Defendant’s indemnity claim is that wrongful litigation was filed against Defendant as a result of the exercise of the right to petition the courts.” But while appellant’s indemnity cause of action stemmed from the litigation brought by RPA, appellant sought no redress for that litigation beyond indemnity for fees and expenses pursuant to an indemnity provision in the Agreement.
Under these circumstances, where a claim involves allegations relating to both protected and unprotected activity within a single cause of action, we are guided by Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188, where the court stated: “[A] defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech or petitioning activity by the defendant. (See Paul v. Friedman [(2002)] 95 Cal.App.4th [853], 866 [‘[t]he statute does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding’].) We conclude it is the principal thrustor gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.” (See also ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1001 [“‘the act underlying the plaintiff’s cause’ or ‘the act which forms the basis for the plaintiff’s cause of action’ must have been an act in furtherance of the right of petition or free speech”].)
Here, the gravamen of the fourth cause of action was a claim for contractual indemnity that was not based on any petitioning activity by Hotels Nevada. “That a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.” (Cotati, supra, 29 Cal.4th at p. 78.) For example, in Cotati mobile home park owners had filed a suit against the city challenging the legality of a rent stabilization ordinance. In turn, the city filed a declaratory relief action against the owners in state court, seeking a declaration that the ordinance was valid. (Id. at pp. 72–73.) The Supreme Court held that the city’s action was not subject to a special motion to strike, reasoning that the owners’ lawsuit was not the actual controversy underlying the city’s state court action for declaratory relief; rather, the underlying basis for both actions was the controversy regarding the city’s ordinance. (Id. at p. 80.) Similarly, in Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929, the court affirmed the denial of a motion to strike a cross-complaint because it alleged causes of action which arose from the plaintiff’s bidding and contracting practices—not from the plaintiff’s right of petition in filing its complaint. (See also Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 417 [holding that a plaintiff’s personal injury action did not arise from protected activity in the form of commercial speech, explaining that “the wrongful injury-producing conduct on which these claims are based arises from the nature of the defective product,” not the failure to conform to its warranted or represented characteristics].)
In this case, the basis for the fourth cause of action for indemnity was Hotels Nevada’s refusal to honor its contractual obligations. Though appellant’s asserted right to indemnity may have been triggered by RPA’s petitioning activity and Hotels Nevada’s support of it, the gravamen of appellant’s claim did not arise from protected activity. This distinction is best highlighted in State Farm General Ins. Co. v. Majorino (2002) 99 Cal.App.4th 974, where the court found that an insurer’s declaratory relief action was not subject to a motion to strike. There, the appellants filed a personal injury action against the Catalanos alleging they were assaulted. State Farm accepted the Catalanos’ tender of defense with a reservation of rights and, in turn, filed a declaratory relief action against the appellants and the Catalanos. The appellants moved to strike State Farm’s action under section 425.16, arguing that it arose from the personal injury action they filed against the Catalanos. (State Farm General Ins. Co. v. Majorino, supra, at p. 976.) The appellate court rejected this argument: “Appellants’ personal injury suit against the Catalanos did trigger the chain of events that caused State Farm to seek a judicial declaration of its coverage obligations. And the nature of the claims in the underlying personal injury case frames the scope of coverage under the State Farm policy. But the action for declaratory relief arose from the tender of defense and the terms of an insurance policy issued well before the underlying litigation commenced, not from the litigation process itself.” (Id. at p. 977.) Likewise, while the RPA action triggered the indemnity cause of action and framed the scope of the request for indemnity, appellant’s claim for indemnity arose from the terms of the Agreement preceding the RPA action, not from the filing of the RPA action itself. Accordingly, the indemnity cause of action was not subject to a special motion to strike.
Given our conclusion that the indemnity cause of action did not “arise from” activity protected by section 425.16, we need not reach the question whether appellant can establish that there is a probability it will prevail on the claim. (See Cotati, supra, 29 Cal.4th at pp. 80–81.) We further find no basis for the imposition of sanctions against Hotels Nevada for cross-appealing the partial denial of the motion to strike. (See § 907; Cal. Rules of Court, rule 8.276(e).)
DISPOSITION
The trial court’s order granting in part and denying in part the motion to strike is affirmed. Parties to bear their own costs on appeal.
We concur: ASHMANN-GERST, J., CHAVEZ, J.