Opinion
A131261
11-09-2011
EDITH MAZZAFERRI, as Trustee, etc., Plaintiff and Respondent, v. RONALD MAZZAFERRO et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City and County of San Francisco Super. Ct. No. CGC-10-500462)
Trustee Edith Mazzaferri sued several parties for misappropriation of trust assets. Five defendants moved to strike the complaint as a SLAPP (strategic lawsuit against public participation) pursuant to Code of Civil Procedure section 425.16. They argued that the lawsuit arose from protected activity in that they were being sued because "their names are attached to documents recorded in a public forum," specifically deeds recorded with the office of the San Francisco County Assessor-Recorder. We affirm the trial court's denial of the motion and we sanction the defendants for pursuing a frivolous appeal.
See Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57 & fn. 1 (Equilon). All statutory references are to the Code of Civil Procedure unless otherwise indicated.
I. BACKGROUND
Luciano and Anna Fiorani (Edith Mazzaferri's aunt) created the The Fiorani Living Trust (Trust) to provide for their developmentally disabled daughter, Lucia Fiorani. Luciano and Anna Fiorani were the initial cotrustees, Mazzaferri's son, Ronald Mazzaferro, was named the successor trustee, and Mazzaferri the second successor trustee. Mazzaferro became successor trustee in April 2000 after Luciano and Anna Fiorani died. The Trust's assets then included real property commonly known as 1072-1074 Filbert Street in San Francisco (Filbert Property) as well as significant cash accounts. In December 2009, on petition of Lucia Fiorani, the San Francisco Superior Court removed Mazzaferro as trustee and appointed Mazzaferri trustee.
Mazzaferri alleges her son Ronald changed his name from Mazzaferri to Mazzaferro. Mazzaferro was designated as the remainder beneficiary.
Mazzaferri then sued appellants (Ronald Mazzaferro both in his personal capacity and in his capacity as trustee of the Trust, Robert F. Van Zandt, Paul Den Beste and Danielle Duperret; hereafter, Defendants) for breach of trust, breach of contract, breach of fiduciary duty, intentional and negligent misrepresentation, conversion, conspiracy, negligence, and several equitable causes of action. She sought damages, declaratory relief, and the equitable remedies of restitution, quiet title, conveyance of property to the Trust pursuant to Probate Code section 850, an accounting, and a constructive trust. Mazzaferri's Pleading Allegations
Mazzaferri identified this defendant as Robert F. "Vanzandt," but we use the spelling Van Zandt himself uses in his appellate papers.
Mazzaferri also sued Stuart Bailey, Lotchk Corporation, Great Sunset Ventures, Inc., and Doe defendants, who are not involved in the instant appeal.
Mazzaferri alleged that, although Lucia Fiorani was homeless, when Mazzaferro was trustee he made only limited efforts to help her obtain housing and falsely told Mazzaferri that Lucia was well cared for and was not interested in the Filbert Property. In June 2004, Van Zandt, purportedly acting on behalf of the Trust, executed a deed of trust in favor of the Lotchk Corporation (a Nevada corporation established in March 2004) that encumbered the Filbert Property to secure a debt of $2.98 million. Den Beste was identified on the deed as "Trustee." The deed was recorded in the office of the San Francisco Assessor-Recorder.
In July 2004, Lucia demanded an accounting of the Trust, but Mazzaferro did not provide the information. In February 2005, Lucia petitioned the probate court for an accounting. In March 2005, Den Beste (purportedly acting on behalf of the Trust) deeded the Filbert Property to Lotchk Corporation for $108,000. The assessed value of the property at that time was $1.62 million. This March 2005 deed was also recorded in the San Francisco Assessor-Recorder Office.
In May 2005, the probate court ordered Mazzaferro to provide an accounting within 30 days. Mazzaferro did not comply. In January 2006, the court issued a warrant of attachment "of the body of defendant Mazzaferro as trustee" of the Trust. In January 2007, the court issued a second such warrant. In September 2009, Lucia petitioned to have Mazzaferro removed as trustee and Mazzaferro's children were notified of the proceedings. In October 2009, Duperret (purportedly acting on behalf of Lotchk Corporation) deeded the Filbert Property to Great Sunset Ventures, a Wyoming corporation established in October 2009. This deed was also recorded in the San Francisco Assessor-Recorder Office.
In December 2009, the superior court removed Mazzaferro as trustee and appointed Mazzaferri trustee. The court ordered Mazzaferro to provide a final accounting. In April 2010, the court issued a third warrant of attachment for Mazzaferro. Mazzaferri's Causes of Action
Mazzaferri's first and third causes of action for breach of trust and breach of fiduciary duty allege that Mazzaferro breached his duties as trustee by, inter alia, failing to make distributions required under the trust instrument, failing to account for trust assets and keep the beneficiaries apprised of the trust's administration, engaging in self-dealing, and failing to deliver Trust assets to the successor trustee. She further alleges that other Defendants who held themselves out as representatives of the Trust breached these duties. Her second cause of action for breach of contract alleges that Mazzaferro breached the written terms of the Trust. Her fourth and fifth causes of action for intentional and negligent misrepresentation allege that Mazzaferro falsely represented to Luciano and Anna Fiorani that he would fulfill his duties as trustee. Her sixth and seventh causes of action for conversion allege that Defendants took possession and conspired to take possession of Trust assets for their personal benefit. Her eighth cause of action alleges that Defendants negligently administered the Trust. Her ninth cause of action for unjust enrichment alleges Defendants intentionally misappropriated Trust assets to their own use and owe restitution to the Trust. Her 10th cause of action seeks to quiet title to the Filbert Property in the Trust. The 11th seeks an order conveying the Filbert Property to the Trust pursuant to Probate Code section 850. (See Prob. Code, §§ 850-859.) The 12th seeks an accounting of Defendants' activity with Trust assets. The 13th asks the court to declare Defendants' ownership of Trust assets a constructive trust for the benefit of the Trust. The 14th and final cause of action seeks declaratory relief setting forth the parties' rights and duties regarding the Trust property. The Anti-SLAPP Motions
Defendants filed five separate but identical anti-SLAPP motions. (See § 425.16.) They argued that Mazzaferri sued them for having "the audacity to exercise their Constitutional right to participate in a public forum by and through the recording of documents with the San Francisco Recorder . . . . All defendants are being sued simply because their names are attached to documents recorded in a public forum, the office [of the] San Francisco Assessor-Recorder . . . . [A]ttaching one[']s name on a document recorded in a public place is an indisputable Constitutional First Amendment Right . . . ." Mazzaferri opposed the motions, arguing the gravamen of her action was the improper transfer or use of Trust assets, not First Amendment-protected activity. She also argued the deeds at issue did not involve an issue of public interest protected by the anti-SLAPP statute. She sought an award of attorney fees and costs pursuant to section 425.16, subdivision (c)(1) (§ 425.16(c)(1)) on the ground that Defendants' motions were frivolous and were filed for the purpose of causing delay.
On December 10, 2010, the trial court denied the motions, explaining the "gravamen of this action concerns recovering trust assets and quieting title and does not arise from activity protected by the anti-SLAPP statute." The court found the motions were frivolous and taken for the purpose of delay and it sanctioned Defendants by ordering them jointly and severally to pay Mazzaferri's reasonable attorney fees and costs in the amount of $11,150. On January 7, 2011, the court issued an order decreeing that Mazzaferri have a joint and several judgment against Defendants in the amount of $11,150 and awarding an additional $4,150 in attorney fees and costs. The court directed the clerk to issue a writ of execution and abstract of judgment on the December 10, 2010 sanction order. On February 8, 2011, Defendants (each acting in propria persona) filed a consolidated notice of appeal "from the single January 7, 2011 order denying their Anti-SLAPP Motion to Strike." We have construed this notice of appeal as a timely appeal from the December 10, 2010 orders denying their anti-SLAPP motions. The orders were immediately appealable under section 425.16, subdivision (i).
On October 21, 2011, appellant Paul Den Beste filed a "Notice that Appeal is Moot, Re: Judgment on Appeal is Void Under Title 11 U S C 362 Bankruptcy Automatic Stay" in this appeal. The filing does not constitute an application within the meaning California Rules of Court, rule 8.50, or a motion within the meaning of rule 8.54. Rather, it appears to be an improper attempt to augment Den Beste's arguments in support of his appeal in violation of California Rules of Court, rule 8.200(a)(4) and to present additional evidence in violation of rule 8.155(a). The court will take no action in response to this filing.
On July 12, 2011, we ordered Defendants to show cause why they should not be ordered to pay (1) Mazzaferri's attorney fees pursuant to section 425.16(c)(1) because the appeal is frivolous, as Mazzaferri requested in her respondent's brief, and (2) sanctions to this court pursuant to section 907 and California Rules of Court, rule 8.276(c), (d), again for filing a frivolous appeal. Defendants filed timely responses to the order.
All further rule references are to the California Rules of Court.
II. DISCUSSION
Section 425.16, the anti-SLAPP 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 Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) Subdivision (e) of section 425.16 defines " 'act in furtherance of a person's right of petition or free speech' " 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, (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, or (4) 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."
The party moving to strike a cause of action has the initial burden to show that the cause of action arises from an act in furtherance of the moving party's right of petition or free speech. (§ 425.16, subd. (b)(1); Equilon, supra, 29 Cal.4th at p. 67.) Once that burden is met, the burden shifts to the opposing party to demonstrate the probability that it will prevail on the claim. (§ 425.16, subd. (b)(1); Equilon, at p. 67.) An appellate court independently reviews whether section 425.16 applies and whether the opposing party has shown a probability of prevailing. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) A. Defendants' "Public Forum" and " Public Interest" Claims
Defendants argue Mazzaferri's action is subject to dismissal because it is "based on [Defendants'] name[s] being connected to an instrument recorded with the San Francisco County Assessor-Recorder." They argue the Recorder's office is a public forum because it is "open to the public on a regular basis for the purpose of allowing members of that public to view the very documents to which [Defendants' names are] connected," and they assert that Defendants' names "being connected to a public record in a public form is a First Amendment Right . . . ." They argue Mazzaferri sued them because they "had the audacity to exercise the Constitutional right to participate in a public forum by and through documents recorded with the San Francisco Recorder to which [their names are] connected." Although Defendants do not invoke a particular subsection of section 425.16, subdivision (e), their references to a "public forum" suggest that they are relying on section 425.16, subdivision (e)(3) (§ 425.16(e)(3)), which covers "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."
We first do not agree that the Recorder's office is a "public forum" or even a "place open to the public" within the intended meaning of those terms as used in the anti-SLAPP statute. "A 'public forum' is traditionally defined as a place that is open to the public where information is freely exchanged. [Citation.]" (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 475, italics added (Damon).)"A public forum is a place open to the use of the general public ' "for purposes of assembly, communicating thoughts between citizens, and discussing public questions." ' [Citations.]" (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130 (Weinberg).)Courts have recognized, for example, that open meetings of homeowner associations as public fora because they are "open to all interested parties, and the meetings served as a place where members could communicate their ideas." (Damon at p. 475, italics added; see also Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1087.) Courts have also generally recognized that newsletters, newspapers, magazines, Web sites, and mailed campaign flyers are public fora even if they only present one point of view because members of the public may respond via similar means of communication. The publications thus form one part of a larger public forum for debate. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 895-897; Damon, at pp. 476-478; see also Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4; Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1036-1039 (Nygard); Macias v. Hartwell (1997) 55 Cal.App.4th 669, 674 (Macias); but see Weinberg, supra, 110 Cal.App.4th at p.1131, fn. 4, & cases discussed in Nygard, at p. 1037.) That a place literally is "open to the public" does not alone establish it as a public forum or "place open to the public" within the meaning of the anti-SLAPP statute. For example, it has been held that the postal service, which obviously is open to the public, is not a public forum when it is used to send a business letter rather than campaign materials. (Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 846 (Kurwa)[distinguishing Macias, at p. 674].)
Defendants argue the San Francisco Recorder's Office is a public forum because it is open to the public and because its purpose is to provide public access to truthful information about the ownership of real property. (See Horton v. Kyburz (1959) 53 Cal.2d 59, 66; City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 733.) However, while the Recorder's Office may be a repository of public information, it is not a forum for public debate or discussion on issues of public interest and thus does not come within the ambit of section 425.16(e)(3).
Second, the "statements" that Defendants claim deserve anti-SLAPP protection (i.e., the contents of the recorded deeds) were not made in connection with an issue of public interest, as required by section 425.16(e)(3). It is true that the "definition of 'public interest' within the meaning of the anti-SLAPP statute . . . include[s] not only governmental matters, but also private conduct that impacts a broad segment of society and/or affects a community in a manner similar to that of a governmental entity. [Citations.]" (Damon, supra, 85 Cal.App.4th at p. 479.) Thus, courts have found statements concerning "a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest [citation]" to be protected statements under section 425.16(e)(3) (as well as section 425.16, subdivision (e)(4)). (Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919, 924 (Rivero).)However, statements on matters of interest to only a few individuals are not protected, even if they relate generally to a topic of interest to the public. In Rivero, for example, the court held that statements about a dispute between eight janitors and their supervisor over the supervisor's job performance were not statements on a matter of public interest even though they were related to public university labor relations, which may have interested the general public or the large community of 17,000 university employees. (Rivero, supra, 105 Cal.App.4th at pp. 916, 919, 924-925, 929; see also Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 114-119 [statements on union website by union trustee about firing of assistant business manager not on matter of public interest]; Kurwa, supra, 146 Cal.App.4th at pp. 848-849 [letter proposing changes in private contract for health care services not a matter of public interest even though tangentially related to issue of health care]; Turner v. Vista Pointe Ridge Homeowners Assn. (2009) 180 Cal.App.4th 676, 687-688 [correspondence between association and resident regarding variance from architectural guidelines not statements on matter of public interest].)
Here, the statements in the recorded deeds are matters of interest only to those few persons with an actual or asserted interest in the Filbert Property—primarily the parties to this lawsuit. Defendants argue "the recording of instruments on real property is in the public interest form [sic] of constructive notice to any subsequent purchasers of the real property." However, the fact that the general topic of public access to information on the ownership of real property may be of interest to the general public does not establish that Defendants' statements regarding the ownership of one unique parcel of real property is a matter of interest to the general public. It is not.
Nor are the statements in the deeds protected under any other subsections of section 425.16, subdivision (e). Subdivisions (e)(1) and (e)(2) require that the statements be made in or in connection with an official proceeding. These statements were not, and Defendants do not even contend that they were. Subdivision (e)(4) also requires that the statements be "in connection with a public issue or an issue of public interest," and as we have already explained, the contents of the deeds are neither a public issue nor matters of public interest within the meaning of the anti-SLAPP statute.
Moreover, even if Defendants could identify an issue of public interest to which the anti-SLAPP statute might otherwise apply, they do not even attempt to identify which of Mazzaferri's particular causes of action would then "arise from" the protected conduct. Defendants argue that the complaint generally arises from their recording deeds to the Property, but the anti-SLAPP statute is addressed to particular causes of action. Defendants do not explain, for example, how Mazzaferri's causes of action for intentional and negligent misrepresentation—which are based on Mazzaferro's statements to Luciano and Anna Fiorani, not the recording of the deeds—come within the protection of the anti-SLAPP statute. Nor do they explain why Mazzaferro's failure to make distributions required under the Trust document, failure to provide a final accounting of the Trust, self-dealing with Trust assets, or commingling of Trust funds arise from protected activity, or why Defendants' conversion of Trust assets arises from protected activity. Even as to causes of action more directly related to the recording of the deeds (such as the quiet title claim), Defendants do not explain why persons who are merely named in the deeds, but who did not actually make the allegedly protected "statements" contained in the deeds or participate in recording them, should enjoy anti-SLAPP protection.
Even if the actual recording of a deed could be considered a protected activity, Defendants further fail to demonstrate that the gravamen of any of Mazzaferri's causes of action is the recording of the deeds, rather than Defendants' misappropriation of Trust assets. "[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity. [Citation.]" (Equilon, supra, 29 Cal.4th at p. 66.) Indeed, the "arising from" requirement is not even satisfied by a showing that the challenged suit was "in response to" or "triggered by" the conduct that the suit challenges. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Rather, "the statutory phrase 'cause of action . . . arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] . . . [T]he critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech. [Citations.]" (Ibid.; see also Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) Thus, we " 'examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies' . . . . [Citation.] We assess the principal thrust by identifying '[t]he allegedly wrongful and injury-producing conduct . . . that provides the foundation for the claim.' [Citation.]" (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272.) Here, the principal thrust of Mazzaferri's claims unquestionably is that Mazzaferro and the other Defendants misappropriated the assets of the Trust.
This case is remarkably similar to Moore v. Shaw (2004) 116 Cal.App.4th 182 (Moore).). There the court held that a lawsuit based on an attorney's drafting of legal documents that allegedly facilitated the misappropriation of trust assets did not come within the ambit of the anti-SLAPP statute. (Id. at pp. 187-190, 195-197.) "The gravamen of [the] two causes of action against [the attorney] is that she intentionally or negligently participated in a breach of trust by drafting the termination agreement for [the trustor] which enabled him to terminate the [trust] prematurely, to the detriment of [plaintiff] and other contingent beneficiaries. . . . [¶] . . . [¶] . . . [The attorney's] conduct in drafting the termination agreement was a wholly private matter unconnected to any 'public issue' or 'issue of public interest.' [Citations.]" (Id. at p. 197.) The court upheld the trial court's determination that the plaintiff's claims did not arise from protected activity. (Ibid.)Likewise, here it is the dispute over the Trust property, and not any protected activity, that is " 'the gravamen or principal thrust' " of the action. (Episcopal Church Cases (2009) 45 Cal.4th 467, 477.)
Defendant Mazzaferro insists that "it is inconceivable that this appeal can be denied." Not at all. Defendants failed to establish, either in the trial court or here, that any of Mazzaferri's causes of action arises from activity protected by the anti-SLAPP statute. The motions were properly denied. B. Other Issues Raised in Defendants' Briefs
Defendants seek to raise two issues that are not directly related to the trial court's denials of their anti-SLAPP motions. First, they argue that Mazzaferri's attorney, Russell Stanaland, has a conflict of interest affecting his representation of Mazzaferri in this lawsuit. They imply that he should be disqualified from representing her and that they have standing to raise the issue. We will not consider this argument on the merits because (1) we have previously informed Defendants that similar allegations about Stanaland's conflict of interest would not be considered by this court unless raised in a motion or other express application for relief; and (2) Defendants have in any event forfeited the issue because they cite no legal authority for any action by this court in response to the alleged conflict of interest. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116 [appellate court may deny claim on appeal that is unsupported by legal argument applying legal principles to the particular facts of the case on appeal].)
Second, Defendants argue the San Francisco Superior Court lacked subject matter jurisdiction over this action, thus rendering the order denying their anti-SLAPP motions (and all other orders issued in this case) void. Defendants cite authority that an order or "judgment void on its face because rendered when the court lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief which the court had no power to grant, is subject to collateral attack at any time. [Citations.]" (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239.) They fail to acknowledge, however, that the case which they cite also draws a distinction between the absence of fundamental jurisdiction, which renders an order or judgment void, and the absence of "jurisdiction" in a broader sense, which simply renders an order or judgment voidable. "Lack of jurisdiction in its most fundamental or strict sense means an entire absence of . . . authority over the subject matter or the parties. [Citation.]" (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) In contrast, a court acts in excess of jurisdiction in the broader sense "where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no 'jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites." (Ibid.; see also Conservatorship of O'Connor (1996) 48 Cal.App.4th 1076, 1087-1088 (O'Connor); Keiffer v. Bechtel Corp. (1998) 65 Cal.App.4th 893, 896 (Keiffer).)"Action 'in excess of jurisdiction' by a court that has jurisdiction in the 'fundamental sense' . . . is not void, but only voidable. [Citations.] In contrast to cases involving other types of jurisdictional defects, a party may be precluded from challenging action in excess of a court's jurisdiction when the circumstances warrant applying principles of estoppel, disfavor of collateral attack or res judicata. [Citation.]" (O'Connor, at p. 1088, fn. omitted.) A claim that does not concern the trial court's fundamental subject matter jurisdiction is waived if not timely asserted. (Keiffer, at p. 898.)
Defendants here unsuccessfully moved for dismissal of Mazzaferri's complaint on jurisdictional grounds and then abandoned their appeal of the trial court's denial of their motions. In order to establish that any claim of error has not thus been forfeited, Defendants must assert a jurisdictional defect in the fundamental sense of lack of personal or subject matter jurisdiction. Defendants assert that the trial court lacked jurisdiction because the Trust was administered in Sonoma County, not the City and County of San Francisco. However, they cite no provision of the Probate Code nor any other legal authority that so limits the jurisdiction of the San Francisco County Superior Court, nor do they demonstrate that any such limit would be jurisdictional in the fundamental sense.
Defendants also argue that the court lacked jurisdiction because Mazzaferri's claims are subject to dismissal under the anti-SLAPP statute and are barred by statutes of limitation. Again, they fail to demonstrate that these alleged grounds for dismissal are defects in fundamental jurisdiction. In any event, we have concluded the claims are not subject to dismissal under the anti-SLAPP statute and Defendants' statute of limitations arguments are premature because they have not yet been ruled on by the trial court.
In short, neither the conflict of interest or jurisdictional issues are properly raised in this appeal. C. Frivolous Appeal
The trial court found that Defendants' anti-SLAPP motions were frivolous and brought solely for purposes of delay. It imposed sanctions on Defendants pursuant to section 425.16(c)(1). In a separate appeal (appeal No. A131076), Defendants challenge the sanctions order on procedural grounds only. In a separate opinion filed concurrently herewith, we reverse the sanctions orders on procedural grounds but allow Mazzaferri to renew her requests for sanctions on remand. In this appeal, Mazzaferri requests attorney fees and costs for defending this appeal pursuant to section 425.16(c)(1). Defendants do not respond to this request other than to argue their anti-SLAPP motion was meritorious. On July 12, 2011, we ordered Defendants to show cause sanctions should not be ordered pursuant to section 425.16(c)(1) and why they should not be required to pay sanctions to this court pursuant to section 907 and rule 8.276(c) and (d). Defendants filed a response on July 22. We now consider whether this appeal is frivolous under section 425.16(c)(1), section 907 and rule 8.276. We conclude that it is.
1. Mazzaferri's Request for Sanctions under Section 425.16(c)
As a preliminary matter, Defendants argue that Mazzaferri's request for sanctions is procedurally flawed because it was made in her respondent's brief and not in a separately filed motion. As authority, they cite Leko v. Cornerstone Bldg. Inspection Service and In re Marriage of Petropoulos, but these cases hold that separate motions are required to seek sanctions pursuant to section 907 and former rule 26(e) (predecessor of rule 8.276), not section 425.16. (Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1124; In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 180.) As we explain in greater detail in our separate opinion in related appeal No. A131076, sanctions for filing frivolous anti-SLAPP motions are governed by the procedures of section 128.5. (See Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1392, superseded by statute on a different point as stated in Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1349; Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 817-818.) Under section 128.5, a separate motion is not required. (§ 128.5, subd. (c); California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1038.)
Sanctions for filing a frivolous anti-SLAPP motion are available both for defending against the motion in the trial court and for defending an appeal of an order denying the motion. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1368, disapproved on another ground in Equilon, supra, 29 Cal.4th at p. 68 & fn. 5.) We have no difficulty concluding that Defendants' appeal of the denial of their anti-SLAPP motions is frivolous, that is, "totally and completely without merit." (§ 128.5, subd. (b)(2).) As we have noted above, there are several ways in which the appeal lacks merit. Not only have Defendants failed to show that any of Mazzaferri's causes of action are based on statements made in a public place or public forum as those terms have been interpreted in the anti-SLAPP context, but they failed to show (and made virtually no effort to show) that the statements were on matters of public interest, as required by section 425.16, subdivisions (e)(3) and (e)(4). Moreover, the case law that Defendants cite in support of their arguments (without analysis) actually demonstrate that the anti-SLAPP motions were properly denied. (See Damon, supra, 85 Cal.App.4th at pp. 475479 [describing public forum as place for free exchange of information and communication of ideas and holding matter of public interest must affect large community]; Kurwa, supra, 146 Cal.App.4th at p. 846, 848-849 [holding mail is not public forum when used for business correspondence and private business transaction is not matter of public interest]; Moore, supra, 116 Cal.App.4th at pp. 195-197 [dispute over administration of trust is not matter of public interest].)
Nor is this even a case where protected activity "may lurk in the background" of the lawsuit, and offer at least some plausible basis to argue that the action arises from protected activity. (Cf. Episcopal Church Cases, supra, 45 Cal.4th at p. 478 [noting that property dispute arose in context of rift between parties about church governance, although causes of action did not arise from that protected activity].) Nothing about this lawsuit suggests it was a SLAPP. Mazzaferri has alleged in her complaint that Defendants engaged in a scheme to fraudulently convey Trust assets. "This dispute, and not any protected activity, is 'the gravamen or principal thrust' of the action. [Citation.]" (Id. at p. 477.) As was true in Moore, Defendants' conduct was a private property transaction unrelated to the right to petition or free speech and "any reasonable attorney would agree that an anti-SLAPP motion did not lie under these circumstances and that the instant motion was totally devoid of merit." (Moore, at p. 200.) Indeed, Defendants' misuse of an anti-SLAPP motion here strongly suggests an intent to raise any and all available procedural obstacles to Mazzaferri's prosecution of her lawsuit, regardless of whether the challenges had merit.
Accordingly, we shall order Defendants jointly and severally to pay Mazzaferri's attorney fees and costs in defending this appeal pursuant to section 425.16(c)(1). The trial court shall calculate the amount of those fees and costs on remand.
2. Sanctions under Section 907 and Rule 8.276
We also consider whether to order Defendants to pay further sanctions directly to this court pursuant to section 907 and rule 8.276. "Because a frivolous appeal, or one taken for improper reasons, harms the court, not just the respondent, a growing number of courts are ordering appellants to pay sanctions directly to the court clerk to compensate the state for the cost of processing such appeals. [Citations.]" (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 35.)
Defendants argue that we have denied them due process by not "identify[ing] with particularity what it is [they have] done in this appeal that constitutes 'frivolous' [sic] . . . ." They cite cases holding that a litigant is entitled to notice and an opportunity to be heard before a court may impose such sanctions, but none of these cases holds that the notice must describe the allegedly frivolous nature of the litigant's papers with any particularity. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654 (Flaherty); In re Marriage of Economou (1990) 223 Cal.App.3d 97, 107 (Economou); Say & Say v. Castellano (1994) 22 Cal.App.4th 88, 91 (Say & Say); Papadakis v. Zelis (1991) 230 Cal.App.3d 1385, 1389 (Papadakis); see also People v. Alice (2007) 41 Cal.4th 668, 674-679 [if appellate court will decide case on grounds not fairly raised by briefs, it must give parties notice and an opportunity to address the new issue]; California Casualty Ins. Co. v. Appellate Department (1996) 46 Cal.App.4th 1145, 1149-1150 [same].) Indeed, several of these cases strongly imply that notice is sufficient if it simply states that the court is considering imposing sanctions for frivolousness and gives the party an opportunity to respond. (See Economou, at p. 107 [fair notice where opposing party requested sanctions in trial court and in her reply brief on appeal and appellate court notified litigant it was considering sanctions payable to the court and directing litigant to show cause why the sanctions should not be granted]; Say & Say, at p. 91 ["we issued an order to show cause why . . . sanctions should not be imposed"]; Papadakis, at p. 1389 [defendant was sent "an order to show cause, stating . . . we were considering the imposition of sanctions, and would allow him to . . . present argument directed to that issue"].) In our order to show cause, we directed Defendants to show cause "why they should not be ordered to pay . . . sanctions to this court pursuant to . . . section 907 and . . . rule 8.276(c), (d) for filing a frivolous appeal." It is well established in the case law cited by Defendants themselves that "frivolous" in this context means that no reasonable attorney could have thought the appeal meritorious. (Flaherty, at p. 650.) Our order provided sufficient notice to Defendants to satisfy due process requirements.
Defendants also argue they should not be ordered to pay sanctions because they are appearing in propria persona and cannot be expected to meet the same standards as licensed attorneys. In support of this argument, they cite Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98, in which the majority recognized that self-represented litigants are generally held to the same standards as an attorney, but held, "We do not believe it is appropriate to hold a propria persona appellant to the standard of what a 'reasonable attorney' should know is frivolous unless and until that appellant becomes a persistent litigant." (But see id. at pp. 98-105 (dis. opn. of Lillie, J.) [discussing appropriateness of sanctions despite appellant's pro. per. status].) By way of separate order in appeal No. A131076, we conclude that Defendants are vexatious litigants within the meaning of section 391 because they have repeatedly filed frivolous motions, appeals and other papers in the trial and appellate courts. Therefore, the rationale relied upon by the court in Kabbe v. Miller does not assist Defendants here. We also observe that Defendants were very clearly warned by the trial court that their contentions lacked any merit, and were frivolous.
This appeal is frivolous not only because Defendants' anti-SLAPP arguments were utterly without merit, but also because Defendants pursued two issues—Stanaland's purported conflict of interest and the trial court's alleged lack of jurisdiction—that were not properly raised on an appeal from the trial court's denial of the anti-SLAPP motions.
We therefore order Defendants, jointly and severally, to pay sanctions to this court. A 2008 case cites a cost analysis by the clerk's office for the Second Appellate District that estimated the cost of processing an appeal that results in an opinion by the court to be approximately $8,500. (In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 520; see also Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1163-1164 [relying on that cost analysis to set amount of sanctions payable to the court].) We conclude that a sanction of $8,000 is appropriate to reimburse the state for the costs of this appeal.
Two other opinions from this district have used a 1992 estimate of approximately $6,000 in costs for processing an average civil appeal, but both cases recognized that the costs had likely risen since the time of that estimate. (Pierotti, supra, 81 Cal.App.4th at p. 36; Keitel v. Heubel (2002) 103 Cal.App.4th 324, 343.)
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III. DISPOSITION
The December 10, 2010 order denying Defendants' anti-SLAPP motion is affirmed. Defendants are sanctioned for filing a frivolous appeal pursuant to section 425.16(c)(1), section 907, and rule 8.276. Defendants are ordered, jointly and severally, to pay Mazzaferri the attorney fees and costs she incurred in this appeal. The trial court shall determine the amount of those fees and costs on remand. Defendants are also ordered to pay jointly and severally $8,000 in monetary sanctions to the clerk of this court no later than 15 days after the date the remittitur is filed.
Bruiniers, J.
We concur:
Simons, Acting P. J.
Needham, J.