Opinion
B315970
11-07-2023
LOCKHART DEVELOPMENT, INC Cross-complainant and Appellant, v. MARK A. LIKER, Cross-defendant and Respondent.
Rodriguez Law Group and Patricia Rodriguez for Cross-complainant and Appellant. Czech & Howell, Jeffery J. Czech and Bradley C. Arnold, for Cross-defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20VECV01388, Virginia Keeny, Judge. Affirmed.
Rodriguez Law Group and Patricia Rodriguez for Cross-complainant and Appellant.
Czech & Howell, Jeffery J. Czech and Bradley C. Arnold, for Cross-defendant and Respondent.
BAKER, J.
Plaintiff, cross-defendant, and respondent Mark Liker (Liker) sued defendant, cross-complainant, and appellant Lockhart Development, Inc. (Lockhart) and others for fraud in connection with a real estate investment. Lockhart filed a cross-complaint alleging Liker's action and a related lis pendens he filed breached an agreement they had and tortiously interfered with litigation pending against a third party. After Lockhart agreed to set aside entry of default it obtained against Liker on the cross-complaint, Liker filed, and the trial court granted, a special motion to strike the cross-complaint on anti-SLAPP grounds (Code Civ. Proc., § 425.16). We consider whether the anti-SLAPP motion should have been denied for any of three asserted reasons: because such a motion was not permitted under the terms of the agreement to set aside Liker's default, because the complaint's claims did not arise from activity protected by the anti-SLAPP statute, or because Lockhart demonstrated a probability of success on those claims.
Undesignated statutory references that follow are to the Code of Civil Procedure.
I. BACKGROUND
A. Liker's Complaint and the Lis Pendens
In November 2020, Liker filed a form complaint against Eliezer Appel (Appel), Lockhart, and Cochran, Inc. (Cochran) asserting a single cause of action for fraud. Liker alleged that Appel, "in his capacity as a California licensed attorney, instructed [Liker] to purchase the property commonly known as 22449 Cass Avenue, Woodland Hills, 91364 [(the Cass Avenue property)], for $250,000.00.... Appel promised [Liker] a return on his investment at a legal rate and promised [Liker] that [Liker] would take ownership of the property or that the property would secure [Liker's] investment." According to the complaint, Appel "concealed from [Liker] the fact that [Liker] did not own the property or the company that took title to the property, [i.e., Lockhart,] . . . and that . . . Appel took [Liker's] investment for his own gain."
The footer of the form complaint indicates "COMPLAINT-Contract," but Liker did not check a box to indicate he was alleging breach of contract. Instead, he checked a box for "Other" causes of action and specified "FRAUD."
In connection with the complaint, Liker also recorded a lis pendens on the Cass Avenue property.
B. Lockhart's Cross-Complaint
Lockhart filed a cross-complaint against Liker alleging causes of action for breach of contract, intentional or negligent interference with contractual relations, interference with prospective economic advantage, breach of fiduciary duty, declaratory relief, implied contractual indemnity, and slander of title. Factually, the cross-complaint alleged Liker and Lockhart agreed that Liker would purchase the Cass Avenue property from Cochran on Lockhart's behalf. Lockhart would then take title to the property subject to a pending lawsuit that affected title to the property, Larocque v. Franz, Los Angeles Superior Court Case No. LC105233 (the Larocque litigation), and sell the property. According to the cross-complaint, "[i]t was clear that the return of [Liker's] investment would only be forthcoming AFTER the Larocque litigation was resolved and the Cass [Avenue] property sold-and then dependent on 'the profit realized[.]" The cross- complaint further alleged Liker's lawsuit against Lockhart and the associated lis pendens "jeopard[ized] a positive outcome in the ongoing Larocque litigation" by, among other things, creating a conflict for Lockhart's attorney in that case.
Lockhart's attorney sent the cross-complaint to Liker's attorney via email on February 3, 2021, and, when no responsive pleading was filed, requested entry of Liker's default on April 7, 2021. Liker's attorney contacted Lockhart's attorney two days later and requested a stipulation to set aside the default because the email transmitting the cross-complaint had gone to his spam folder and because, in any event, he had not agreed to accept service of the cross-complaint by email.
The parties thereafter filed a joint stipulation agreeing that Lockhart would withdraw the entry of default and give Liker fifteen days from the court's execution of an order setting aside the default to file "an Answer (only)" to the cross-complaint. The trial court thereafter entered an order vacating the entry of default and stating Liker "shall file an [a]nswer (only) within 15 days following entry" of the court's order. Liker timely filed an answer on May 5, 2021, as directed by the court's order.
C. Liker's Anti-SLAPP Motion
A little over a month after that, on June 25, 2021, Liker filed an anti-SLAPP motion. The motion argued all of Lockhart's causes of action arose from protected petitioning activity and failed as a matter of law because they were barred by the litigation privilege. He expressly sought to strike each cause of action or, in the alternative, certain paragraphs of the complaint that we now quote in full:
General Allegations
Paragraph 8: "On or about November 24, 2020, Liker filed a complaint against Appel, Lockhart and Cochran alleging fraud. He falsely claimed that title was to be conveyed to him personally. In addition, the Complaint alleges he is entitled to receive $250,000 back even though he signed an agreement stating that his investment and any return on his investment would benefit Lockhart and be subject to the outcome of the [Larocque litigation] and the sale of the Cass [Avenue] property."
Paragraph 9: "By filing this Complaint, Liker has not only breached the agreement, but he has put in jeopardy a positive outcome to the ongoing Larocque litigation. The attorney for Lockhart in that litigation is now in conflict, as he has cases in which he is the attorney for or on behalf of Liker and he has filed a motion to be relieved as counsel for Lockhart. Lockhart now finds itself in a diminished position that makes settlement the better choice."
Paragraph 13: "Liker improperly recorded a lis pendens on the Cass [Avenue] property which was transferred, per the agreement, to the party intended. He has no claim to title of the Cass [Avenue] property."
Paragraph 14: "Cross-Complainant is informed and believes and, on that basis alleges, Liker admitted under oath, in a separate proceeding that he owes $600,000 to Lockhart. With respect to that debt, he also executed a note and Deed of Trust, and signed a Declaration under oath pertaining to those documents."
Paragraph 15 (omitted portions of this paragraph are not challenged): "Liker's lawsuit has interfered with the litigation and possibly emboldened the Plaintiff Larocque."
First Cause of Action for Breach of Written Contract
Paragraph 16: "Cross-Complainant realleges and incorporates by reference Paragraphs 1 through 15 inclusive as though set forth in full herein."
Paragraph 19: "While the Larocque litigation was (and is) still pending, Liker, individual [sic] filed a litigation against the parties to the contract and against Eliezer Appel claiming fraud. The litigation caused Lockhart's attorney, Moses Bardavid, to file a motion to be relieved as counsel due to a conflict-as Mr. Bardavid was the attorney of record in one or more cases in which he represented Mr. Liker or his interests. That withdrawal left Lockhart without counsel, emboldened Plaintiff, and complicated litigation, increasing the costs and/or made settlement more necessary but less likely to be beneficial to either Cochran or Lockhart."
Paragraph 20: "Cross-Complainant is informed and believes, and on that basis alleges, that Cross-Defendant's lawsuit was filed in an effort to offset monies owed, and/or intimidate Lockhart from pursuing monies Liker owes to it."
Paragraph 23: "Cross-Defendant, by this lawsuit has failed to comply with the terms of the agreement he signed as V.P. and CEO of Lockhart in which Cross-Complainant is informed and believes and, on that basis alleges that Liker made a knowing and informed investment on behalf of Lockhart."
Paragraph 24: "Cross-Complainant is informed and believes, and on that basis, alleges that Liker has breached the implied covenant of good faith and fair dealing that is implied in every contract. By filing a suit alleging fraud and an entitlement to property that he knew he had no right to, he has not only breached the contract, but he has misrepresented the agreement to the tribunal. And further, he has interfered with the Larocque litigation and with the ability of Cross-Complainant to carry out the terms and purposes of the agreement signed by Liker on behalf of Lockhart, as V.P. and CEO."
Second Cause of Action for Intentional or Negligent Interference with Contractual Relations
Paragraph 26: "Cross-Complainant realleges and incorporates by reference Paragraphs 1 through 25 inclusive as though set forth in full herein."
Paragraph 29: "Cross-defendant[ ] filed a lawsuit which caused Lockhart's counsel to file a motion to be relieved in the Larocque litigation, leaving Lockhart unrepresented and causing Larocque to be emboldened in his claims and to use Liker's misrepresentations against Lockhart in a Fifth Amended Complaint."
Third Cause of Action for Interference with Prospective Economic Advantage
Paragraph 31: "Cross-Complainant realleges and incorporates by reference Paragraphs 1 through 30 inclusive as though set forth in full herein."
Paragraph 34: "By filing a frivolous litigation against the parties to the contract, and misstating the circumstances of his investment, Cross-defendant intentionally disrupted the relationship of the parties, particularly with respect to causing Cross-complainant to lose his counsel who had been working on this case for on or about two years or more, and otherwise interfering with a beneficial outcome to the known litigation."
Liker's anti-SLAPP motion erroneously labels the text of Paragraph 34 as Paragraph 32.
Fourth Cause of Action for Breach of Fiduciary Duty
Paragraph 36: "Cross-Complainant realleges and incorporates by reference Paragraphs 1 through 35 inclusive as though set forth in full herein."
Paragraph 37: "Liker signed the agreement as CEO and V.P., of Lockhart, Inc., Cross-defendant therefore owed Cross-complainant a fiduciary duty of utmost care, integrity, honesty and loyalty in its dealings with Cross-complainant. Investing money on behalf of Lockhart and then suing Lockhart while it is in the middle of performing the obligations of that contract has undermined the Cross-complainant and the other defendants' stated and agreed upon goals. It has also undermined Liker's own investment goals, which Cross-complainant is informed and believes and thereon alleges was to repay monies Liker owed to Lockhart."
Paragraph 38: "Cross-complainant, is informed and believes and on that basis alleges that instead of seeking to repay Lockhart, Cross-defendant further breached its fiduciary duty to Lockhart by trying to extinguish the money he owes to Lockhart by intimidation through filing a false claim against it, and interfering with the Larocque litigation."
Fifth Cause of Action for Declaratory Relief
Paragraph 40: "Cross-Complainant realleges and incorporates by reference Paragraphs 1 through 39 inclusive as though set forth in full herein."
Sixth Cause of Action for Implied Contractual Indemnity
Paragraph 43: "Cross-Complainant realleges and incorporates by reference Paragraphs 1 through 42 inclusive as though set forth in full herein."
Paragraph 44: "Cross-defendant's conduct in filing a false Complaint for fraud was a substantial factor in harm caused to Cross-complainant in that it has caused Cross-complainant the need to retain new counsel and bring new counsel up to speed in a case that had been ongoing since 2017. In addition, Cross-complainant may incur further losses with respect to the litigation outcome due to the false allegations made by Crossdefendant in his lawsuit that now need to be defended in the Larocque case."
Seventh Cause of Action for Slander of Title
Paragraph 46: "Cross-defendant filed a lawsuit and recorded a lis pendens on the Cass [Avenue] property, thereby casting doubts regarding the ownership of the property."
Paragraph 47: "The lis pendens was recorded by Liker and service sent to parties and to the Plaintiff in the Larocque case."
Paragraph 49: "The Cross-defendant acted with knowledge or with reckless disregard as to the veracity of his statements and[ ] the Cross-defendant should have known or recognized a third party (including Larocque)[ ] might rely on such statements and cause financial harm to the Cross-complainant."
Paragraph 50: "The Cross-complainant did actually suffer financial harm as a direct result of counsel being conflicted out of representing Lockhart and a third party's reliance on such statement."
Paragraph 51: "The Cross-defendant's conduct was directly attributable and a substantial factor in the causing of such harm."
Paragraph 52: "By reason of Cross-defendant's lis pendens and statements casting doubt on the title of the Cass [Avenue] property, Lockhart has sustained damages and will sustain damages in excess of the minimum jurisdiction of this Court in an amount to be proven at trial."
D. Lockhart's Opposition
Lockhart contended none of its causes of action arise from protected activity because they do not concern "the bare act of filing an action" and the lis pendens was improper. Lockhart further contended the challenged causes of action have minimal merit because "a written contract exists which would imply a good faith agreement to support the pending [Larocque] litigation" and "the lis pendens recording is not based on a title or possession claim, but rather on a claim for money, and is therefore not privileged and improper."
In addition to its arguments on the merits, Lockhart raised two procedural objections to Liker's anti-SLAPP motion. First, Lockhart contended the motion was barred by the terms of the parties' joint stipulation to set aside Liker's default, which permitted the filing of an "Answer (only)." Second, Lockhart argued the anti-SLAPP motion was untimely under section 425.16, subdivision (f), which provides that an anti-SLAPP motion "may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper." Lockhart emphasized the anti-SLAPP motion was filed "almost five months after the filing of the subject Cross-Complaint, served on February 3, 2021."
Lockhart separately moved to strike Liker's anti-SLAPP motion on the same grounds.
E. The Trial Court's Ruling
The trial court granted Liker's anti-SLAPP motion and struck the entirety of the cross-complaint.
The trial court rejected both of Lockhart's arguments contending the anti-SLAPP motion was not properly before the court. With respect to Lockhart's contention that the motion was barred by the parties' stipulation, the trial court interpreted the "Answer (only)" provision to mean only that Liker could not file a demurrer. The trial court also found good cause to extend the statutory time to file an anti-SLAPP motion based on "the early stage[ ] of th[e] case, the fact that there is no proof of service in the file, and [because] service [of the cross-complaint] was accomplished by email without strict compliance with section 1010.6[, subdivision (e)] [addressing electronic filing] ...."
On the merits, the trial court found that "[e]ach cause of action is based on [Liker's] actions of either filing a complaint and/or recording a lis pendens," which "constitutes a type of protected activity." Proceeding to the second step of the anti-SLAPP analysis, the trial court found Lockhart failed to demonstrate a probability of success on the merits because the litigation privilege barred each of the cross-complaint's causes of action. Acknowledging that the recording of a lis pendens is only so privileged if it identifies an action "which affects the title or right of possession of real property" (Civ. Code, § 47, subd. (b)(4)), the trial court emphasized that "the lis pendens refers to [Liker's] complaint and affects title or right to possession of real property, specifically the Cass [Avenue] [p]roperty."
Lockhart noticed an appeal from the trial court's ruling. Although Lockhart checked a box on its notice of appeal indicating it is appealing "[a]n order after judgment under Code of Civil Procedure, § 904.1(a)(2)," both parties treat the appeal as one from the trial court's ruling on Liker's anti-SLAPP motion, and we shall do the same. (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882-884.)
II. DISCUSSION
The trial court did not err in granting Liker's anti-SLAPP motion. The only reasonable construction of the stipulated provision that Liker would file an "[a]nswer (only)" is that Lockhart agreed to extend the time to file an answer (rather than a demurrer) but reserved the argument that an anti-SLAPP motion was untimely under the statute. We also agree with the trial court that each cause of action asserted in Lockhart's cross-complaint arises from protected activity: filing the complaint or recording the lis pendens. As to the existence of a reasonable probability that Lockhart would prevail on the cross-complaint, the litigation privilege bars those causes of action arising from the filing of Liker's complaint and, though the privilege does not extend to filing the lis pendens, Lockhart made no adequate showing that it could prevail on the claims for slander of title and declaratory relief that seek redress for the recording of the lis pendens.
Lockhart filed a proposed settled statement purporting to identify additional errors, including that the trial court should not have considered the late-filed anti-SLAPP motion or awarded Liker attorney fees. Because Lockhart does not discuss these issues in its opening brief, they are abandoned. (Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948.)
A. Legal Framework and Standards of Review
1. The parties' stipulation
The parties' stipulation and the related trial court order are to be construed under general principles of contract interpretation. (Cuenca v. Cohen (2017) 8 Cal.App.5th 200, 222.) Where, as here, the stipulation's meaning does not turn on the credibility of extrinsic evidence, we interpret the agreement de novo. (Breathe Southern California v. American Lung Assn. (2023) 88 Cal.App.5th 1172, 1181.)
2. The anti-SLAPP statute
"Litigation of an anti-SLAPP motion involves a two-step process. First, 'the moving defendant bears the burden of establishing that the challenged allegations or claims "aris[e] from" protected activity in which the defendant has engaged.' [Citation.] Second, for each claim that does arise from protected activity, the plaintiff must show the claim has 'at least "minimal merit."' [Citation.] If the plaintiff cannot make this showing, the court will strike the claim." (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) An order granting an anti-SLAPP motion is reviewed de novo. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.)
B. The Stipulation Did Not Preclude Liker's Anti-SLAPP Motion
Parties may expressly condition relief from default on an agreement not to file an anti-SLAPP motion. (Balla v. Hall (2021) 59 Cal.App.5th 652, 691 [party in default agreed "'not to file an Anti-SLAPP motion in this case'"].) No such clear prohibition was agreed to here. Instead, Lockhart agreed to "withdraw its [d]efault and grant . . . Liker fifteen (15) days . . . to file an Answer (only)." Lockhart's contention that this agreement prohibited Liker from filing an anti-SLAPP motion after he answered the cross-complaint fails because it lacks any limiting principle.
Although the "Answer (only)" provision is amenable to a broad reading that would bar Liker from filing anything other than an answer during the entire course of the proceedings on Lockhart's cross-complaint, our task in construing a contract is to determine the parties' intent-not to adopt the broadest conceivable interpretation of every term. (Civ. Code, § 1648 ["However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract"].) Even if Lockhart does not endorse this broad reading of the "Answer (only)" provision, Lockhart does not articulate any basis to distinguish between an anti-SLAPP motion and, for instance, a motion for summary judgment.
We do not believe the stipulation can reasonably be read to permit Liker to file an answer but no other pre-trial challenge to the cross-complaint (such as a summary judgment motion). The "Answer (only)" provision must be construed in the context of the purpose of the stipulation, which was to extend the deadline to respond to the cross-complaint. (Civ. Code, § 1641 ["The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other"].) In that light, the "[a]nswer (only)" provision is best read to limit the scope of documents that would be deemed timely filed within the stipulation's 15-day window. And so understood, the "[a]nswer (only)" provision does not preclude an anti-SLAPP motion, but neither does it extend the statutory time to file the motion. In other words, Lockhart agreed to give Liker additional time to file an answer and specified that it was not allowing Liker additional time to file anything else-including an anti-SLAPP motion that was arguably untimely under section 425.16, subdivision (f). Indeed, Lockhart took precisely this view of the stipulation in meet-and-confer correspondence, arguing the motion would be untimely but not that it was barred by the stipulation.
C. Anti-SLAPP Prong One: The Challenged Causes of Action Arise from Protected Activity
The anti-SLAPP statute identifies four categories of protected activity. (§ 425.16, subd. (e)(1)-(4).) As pertinent here, section 425.16, subdivision (e) defines protected acts "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 "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law" and "(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 ...."
Here, the acts giving rise to Lockhart's cross-complaint are Liker's filing his complaint and recording the lis pendens. It is well established that "[t]he filing of a lawsuit is . . . an exercise of a party's constitutional right of petition under the anti-SLAPP law. [Citations.]" (Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 285, fn. 3; Briggs v. Eden Council for Hope &Opportunity (1999) 19 Cal.4th 1106, 1115 ["'"[t]he constitutional right to petition . . . includes the basic act of filing litigation or otherwise seeking administrative action"'"].)
Lockhart's invocation of the principle that a cause of action may be triggered by protected activity without arising from protected activity for purposes of section 425.16, subdivision (b)(1) (see, e.g., Navellier v. Sletten (2002) 29 Cal.4th 82, 89) does not undermine the straightforward conclusion that the cross-complaint arises in part from Liker's lawsuit. The cross-complaint expressly and repeatedly refers to Liker's complaint as the basis of Lockhart's causes of action and there is no other allegedly wrongful, unprotected conduct. (Id. at 90 [holding that action "f[e]ll[ ] squarely within the ambit of the anti-SLAPP statute's 'arising from' prong" where, "but for [a] federal lawsuit and [the defendant's] alleged actions taken in connection with that litigation, [the] plaintiffs' present claims would have no basis"].)
Recording a lis pendens is also protected activity under the anti-SLAPP statute. (La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 471 ["Unquestionably, the recording of the lis pendens constituted a written statement made in connection with issues under consideration in a judicial proceeding"].) Lockhart contends this lis pendens is not protected under the anti-SLAPP statute, however, because Liker's lawsuit did not "affect[ ] the title or right of possession of" the Cass Avenue property as required for the litigation privilege to apply. (Civ. Code, § 47, subd. (b)(4).) Although the point has some force at the second step of our anti-SLAPP analysis (as we discuss post), it does not at the first step. The action of recording the lis pendens is anti-SLAPP protected activity regardless of whether the litigation privilege applies. (See, e.g., Park 100 Investment Group II, LLC v. Ryan (2009) 180 Cal.App.4th 795, 805-806 [recording a lis pendens is protected under the anti-SLAPP statute "[e]ven if . . . not appropriate under the circumstances"]; Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1050, 1057 [holding that the improper recording of a lis pendens referring to an arbitration (as opposed to an action in a court of law) was protected under the anti-SLAPP statute even though not within the scope of the litigation privilege].)
D. Anti-SLAPP Prong Two: Lockhart Failed to Demonstrate a Probability of Success on the Merits
"The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a 'publication or broadcast' made as part of a 'judicial proceeding' is privileged.... 'The usual formulation is that the 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 [has] some connection or logical relation to the action.' [Citation.] The privilege 'is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.' [Citation.]" (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.)
Here, the majority of Lockhart's causes of action expressly arise from the filing of Liker's complaint: the first cause of action for breach of contract, the second cause of action for interference with contractual relations, the third cause of action for interference with prospective economic advantage, the fourth cause of action for breach of fiduciary duty, and the sixth cause of action for implied contractual indemnity. Although "the [litigation] privilege is generally described as one that precludes liability in tort, not liability for breach of contract" (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 773), it applies to contract claims "if the agreement does not 'clearly prohibit' the challenged conduct[ ] and if applying the privilege furthers the policies underlying the privilege. [Citation.]" (Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 787.) Because the purchase and sale agreement for the Cass Avenue property did not clearly prohibit Liker's fraud action and applying the privilege in these circumstances promotes access to the courts without fear of retaliatory litigation (id. at 788), the litigation privilege bars both the tort and contract causes of action arising from the filing of Liker's complaint.
To the extent that they arise from the recording of the lis pendens, Lockhart's causes of action for declaratory relief and slander of title are a different story. As we have already mentioned, one of the several statutory exceptions to the litigation privilege is that "[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." (Civ. Code, § 47, subd. (b)(4).) Liker contends his complaint "affects the title or right of possession of real property" because the trial court had discretion to order specific performance. But Liker fundamentally mischaracterizes his complaint, which asserts a single cause of action for fraud, as one "for breach of a real estate contract." Because specific performance is a contract remedy-not a tort remedy-the cross-complaint's allegations concerning the lis pendens are not doomed by the litigation privilege. (Civ. Code, § 3384 ["Except as otherwise provided in this Article, the specific performance of an obligation may be compelled"], emphasis added; see also Valley Crest Landscape Development, Inc. v. Mission Pools of Escondido, Inc. (2015) 238 Cal.App.4th 468, 492 [specific performance unavailable where the plaintiff had an adequate legal remedy].)
That said, our review is still de novo and reversal of the trial court's order would be warranted only if Lockhart's evidence demonstrates a probability of success on the merits. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788 ["As to the second step, a plaintiff seeking to demonstrate the merit of the claim 'may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence'"].)
With respect to the claim for slander of title, Lockhart's arguments focus exclusively on whether the lis pendens was appropriate. Defeating an affirmative defense is little help to a litigant who fails to make a prima facie case, however, and here there is no evidence that the lis pendens caused Lockhart direct pecuniary loss. (Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1030 ["The elements of [slander or disparagement of title] are (1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss"].)
The damages element also explains why Liker's contention that his withdrawal of the lis pendens mooted Lockhart's claim fails. If Lockhart had evidence that recording the lis pendens caused direct pecuniary loss, it would potentially be able to recover despite the subsequent withdrawal. Accordingly, although we granted Liker's request for judicial notice of documents relating to Liker's withdrawal of the lis pendens and the resolution of the Larocque litigation, these do not figure into our analysis.
Lockhart's claim for declaratory relief fails for an even more basic reason. "Declaratory relief operates prospectively-a remedy 'to be used in the interests of preventive justice, to declare rights rather than execute them.' [Citation.]" (Cordoba Corp. v. City of Industry (2023) 87 Cal.App.5th 145, 156-157.) More to the point, "[t]he purpose of the declaration is to allow the parties to shape their conduct to avoid a breach," and "[t]here is no basis for declaratory relief where only past wrongs are involved." (Id. at 157.) Here, Lockhart suggests there is an actual controversy because "[Liker] contends that title to the Cass [Avenue] property should be in [his] name ...." But we have already explained-as Lockhart argued with respect to the litigation privilege-that this is not an accurate characterization of Liker's complaint. Lockhart essentially "seeks a declaration that it is innocent of the alleged fraud. Such a declaration would be of no use except as a defense against the allegations [in the original complaint]. And without an actual controversy concerning present rights and duties, section 1060 does not authorize a declaration." (Ibid.)
DISPOSITION
The order granting Liker's anti-SLAPP motion is affirmed. Liker shall recover his costs on appeal.
We concur: RUBIN, P.J., KIM, J.