Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County. Mary Ann Murphy, Judge, Los Angeles County Super. Ct. No. BC 358745
DiJulio Law Group and R. David DiJulio for Plaintiffs and Respondents.
Bander Law Firm, Joel R. Bander and William Gilmore for Defendants and Appellants.
FLIER, J.
Respondents Mercedes Asuncion, Remigio M. Ruano, Jr., and Narciso Ruano filed an action for abuse of process against appellants Krys Howard, Marites Howard, Maribel Liberato, Tiffany Krog, and the DiJulio Law Group and R. David DiJulio. The trial court denied appellants’ special motion to strike brought under Code of Civil Procedure section 425.16 (hereafter section 425.16). We conclude that, as a matter of law, respondents cannot prevail in their action and that therefore the motion to strike should have been granted. Accordingly, we reverse.
FACTS AND PROCEDURAL HISTORY
This case, and two other cases associated with it, involves two warring camps composed largely of family members. For clarity’s sake, we state here the identities and relationships of the parties.
Appellants Marites Howard, Maribel Liberato, and respondent Mercedes Asuncion are sisters. Josefina Ruano, 82 years old, is the mother of the sisters Howard, Liberato and Asuncion.
Appellants Krys and Marites Howard are husband and wife.
The property that is involved in all three actions is located at 1917 Ripple Street in Los Angeles. This property, hereafter referred to as the Ripple Street property, is owned by respondents Narciso Ruano and Remigio M. Ruano, Jr., and the Ruano revocable living trust. Mercedes Asuncion is a trustee of this trust.
The two camps are composed of respondents (Mercedes Asuncion, Narciso Ruano and Remigio M. Ruano, Jr.) and appellants (Krys Howard, Marites Howard, Maribel Liberato, and Tiffany Krog).
On September 19, 2005, appellants, purporting to appear as Josefina Ruano’s guardians ad litem, filed an action for elder abuse against respondent Mercedes Asuncion. We will refer to this case by the last three numbers of its civil action No. BC340066 (066) or as the “elder abuse case.” After their petition to be appointed guardians ad litem was rejected, appellants Marites Howard and Liberato filed on October 27, 2005, a first amended complaint in action 066 for elder abuse and other causes of action in their personal capacities. The record before us indicates that action 066 is still pending and has not come to judgment in the superior court.
In order to minimize confusion, we refer to the parties by the collective name that applies to this appeal. Thus, appellants were the plaintiffs in action 066 and respondent Mercedes Asuncion was the defendant.
See footnote 4 and accompanying text, post.
We grant respondents’ request, filed on September 5, 2007, that we take judicial notice of the original and first amended complaints in action 066. We deny the balance of the request as unnecessary for our disposition of this appeal.
On November 2, 2005, respondent Mercedes Asuncion filed an action for malicious prosecution and abuse of process against appellants and the DiJulio Law Group and R. David DiJulio, who represent respondents in action 066. We refer to this action by the last three numbers of its civil action No. BC342408 (408).
Action 408 alleged that action 066, the elder abuse case, was filed without probable cause and for the purpose of delaying the sale of the Ripple Street property, which, the complaint alleged, was being used wrongfully by appellants for their own purposes. In addition, action 408 set forth a cause of action for abuse of process that alleged that action 066 was initiated by appellants in order to enable them to file a lis pendens on the Ripple Street property, thereby putting pressure on respondents to accede to appellants’ demands regarding the Ripple Street property.
Appellants filed a motion to strike in action 408 under section 425.16. This motion was denied as filed untimely, i.e., filed more than 60 days after the complaint was served.
As noted, on September 18, 2006, respondents filed an action for abuse of process against appellants and the DiJulio Law Group and R. David DiJulio. We will refer to this action, which is the action on appeal, by the last three numbers of its civil action No. BC358745 (745).
The complaint in action 745, setting forth only a single cause of action for abuse of process, alleges that action 066, the elder abuse case, was filed by respondents as guardians ad litem of Josefina Ruano, even though they were not guardians ad litem, and that the purpose of action 066 was to use it as a vehicle to file a lis pendens against the Ripple Street property, which is owned by respondents Narciso Ruano and Remigio M. Ruano, Jr., and the Ruano revocable living trust. According to the complaint, the purpose of the lis pendens was to: (1) delay the sale of the Ripple Street property; (2) in order to permit Maribel Liberato and her family to continue to live there without paying rent; and (3) to force respondents to comply with appellants’ demands regarding the uses of the Ripple Street property.
We note that the trial court has consolidated actions 408 and 745 for all purposes and that action 408 is considered the lead case.
In ruling on appellants’ motion to strike, the trial court found that respondents’ action 745 met the “minimal merits test” and therefore denied the motion to strike.
DISCUSSION
“Section 425.16 posits instead a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88, citations omitted.) In order to establish the requisite probability of prevailing, the plaintiff need only to have stated and substantiated a legally sufficient claim. (Ibid.) It is axiomatic that, where it appears as a matter of law that the plaintiff’s claim cannot be maintained, the claim is legally not sufficient. (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1422-1424.)
1. Action 745 Arises from Appellants’ Exercise of Their Right To Petition
Respondents maintain that appellants’ filing of action 066 was not a “valid exercise” of their right to petition because they prosecuted that action without obtaining an order naming them guardians ad litem and because they filed a lis pendens predicated on that action.
Normally, filing a lawsuit is an exercise of the right to petition for a redress of grievances. (Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 340.) The fact, if it is a fact, that appellants were not appointed guardians ad litem does not alter or detract from the fact that they filed action 066, and that they filed a first amended complaint in action 066 in their personal capacities. In any event, procedural irregularities do not render a lawsuit an “invalid” exercise of the right of petition, especially when, as here, they have been eliminated by an amended pleading. Neither does the filing of a lis pendens, whether or not it is later expunged or withdrawn, affect the character of a lawsuit as an exercise of the right to petition.
Attorney DiJulio’s declaration filed in support of the motion to strike appears to concede that an application to be appointed guardians at litem was rejected for “technical defects.” But for this concession, respondents’ assertion is not supported by a reference to the record.
Whether or not a civil action has merit, or is affected by procedural infirmities, does not affect its character as a petition for a redress of grievances. A contrary view would severely restrict the scope of this historic concept.
Respondents’ action therefore meets the first of the two tests in that the action arises from protected activity, i.e., the right to petition.
2. Respondents Cannot Prevail on Their Action for Abuse of Process
We conclude, for reasons fully set forth in Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169-1170 (Oren Royal Oaks Venture), that respondents’ action, predicated solely on a cause of action for abuse of process, cannot be maintained and is legally insufficient. We set forth the court’s reasoning in Oren Royal Oaks Venture:
“The relevant California authorities establish . . . that while a defendant’s act of improperly instituting or maintaining an action may, in an appropriate case, give rise to a cause of action for malicious prosecution, the mere filing or maintenance of a lawsuit--even for an improper purpose--is not a proper basis for an abuse of process action. [Citations.] The overwhelming majority of out-of-state precedents have reached the same conclusion. [Citations.] [¶] The rationale underlying these decisions is not difficult to ascertain. The elements of the common law malicious-prosecution cause of action have evolved over time as an appropriate accommodation between the freedom of an individual to seek redress in the courts and the interest of a potential defendant in being free from unjustified litigation. In order to avoid an improper ‘chilling’ of the right to seek redress in court, the common law provides that to prevail in a tort action for malicious prosecution a party must demonstrate ‘that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his . . . favor . . .; (2) was brought without probable cause . . .; and (3) was initiated with malice. . . .’ [Citation.] If, as Oren maintains, the filing of an action for an improper ‘ulterior’ purpose were itself sufficient to give rise to an abuse of process action, the ‘lack-of-probable-cause’ element of the malicious prosecution tort would be completely negated; even if an individual could demonstrate that he had reasonable cause to believe that his initial lawsuit had merit when he filed the action, he would still face potential liability under an abuse of process theory. Because the lack-of-probable-cause requirement in the malicious prosecution tort plays a crucial role in protecting the right to seek judicial relief (see Rest.2d Torts, § 675, coms. c-j), we agree with the prior decisions which have concluded that this element may not be circumvented through expansion of the abuse of process tort to encompass the alleged improper filing of a lawsuit.” (Oren Royal Oaks Venture, supra, 42 Cal.3d at pp. 1169-1170.)
Oren was the plaintiff and appellant in Oren Royal Oaks Venture.
The case that is before us, action 745, sets forth only a cause of action for abuse of process. Action 408, which has been consolidated in the trial court with action 745, asserts a cause of action for malicious prosecution. It is another matter, which is not before us, whether the cause of action for malicious prosecution of action 066, asserted in action 408, may be maintained prior to a judgment in action 066. We note the basic requirement that favorable termination of the underlying prior proceeding is an essential element of the tort of malicious prosecution. (See generally 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §§ 713, 714, pp. 171-173.)
The rule set forth in Oren Royal Oaks Venture is in all respects contemporary and vital. (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 520-522 [discussing and applying Oren Royal Oaks Venture].) It is clear that, as a matter of law, respondents’ abuse of process claim cannot be maintained.
Since respondents cannot show that they will prevail in action 745, the order denying appellants’ motion to strike must be reversed and a new order granting that motion must be entered.
3. We Disregard Respondents’ Claim That They Were Not Informed of the Date of the Hearing of the Motion to Strike
Without citing the record, respondents claim that “they did not know of the hearing” on the motion to strike.
Respondents concede that they were served with the motion to strike and that they filed a comprehensive opposition to the motion. According to the reporter’s transcript of the hearing on the motion, respondents’ counsel did not appear at that hearing.
Respondents must support assertions of fact with a reference to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) We disregard assertions of fact absent such a reference. (Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451.) Stranding alone, this would be sufficient to reject respondents’ contention. Nonetheless, we address the substance of respondents’ contention.
The notice of the motion to strike set forth January 3, 2007, as the date of the hearing. The record contains a notice by appellants’ counsel continuing the hearing to February 16, 2007. In fact, the hearing was held on February 16, 2007.
There is a presumption of regularity in the proceedings, i.e., that the notice of continuance was received, and it is respondents’ burden to provide the record that shows that presumption to be incorrect. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 8:17, p. 8-5 (rev. #1, 2005.) Absent any showing to the contrary, we presume that the hearing was continued with appropriate notification to all counsel and that respondents’ counsel simply failed to appear at the hearing.
4. Respondents’ Have Waived the Requirement That the Hearing on the Motion To Strike Must Be Held 30 Days After the Motion Is Served
Appellants point out that the motion to strike was heard more than 30 days after it was served, and that this violates subdivision (f) of section 425.16, which requires the clerk to schedule the motion for a hearing 30 days after it is served, unless the condition of the trial court’s docket requires a later hearing. The 30-day deadline imposed by subdivision (f) is mandatory. (Greka Integrated, Inc. v. Lowrey (2005) 133 Cal.App.4th 1572, 1577 (Greka Integrated).)
Appellants make two observations with which we agree.
First, since the matter of subdivision (f) was not raised in the trial court and there is therefore no record of the condition of the court’s docket during the relevant time period, the condition of the court’s docket would have to be reconstructed in order to consider respondents’ belated argument. Assuming that this can be done, respondents have failed to do so. We see no reason to relieve respondents of the usual burdens of a party who asserts that an error was committed in the trial court. Such a party must usually assert the error in the trial court and must also submit an adequate record on appeal that allows the reviewing court to decide whether error was committed. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 8:17, p. 8-5 [citing authorities].) Respondents in this case have fallen short on both counts.
Second, it has been held that the 30-day deadline set forth in subdivision (f) is not jurisdictional and that where a party agreed to a date beyond the 30-day limit, that party has waived the time limit provided for in subdivision (f). (Greka Integrated, supra, 133 Cal.App.4th at pp. 1577-1578.) While Greka Integrated involved an express agreement to continue the hearing to a date beyond the 30-day deadline, we think that allowing the hearing to go forward without objection also amounts to a waiver of the 30-day deadline. A contrary rule would make no sense, since it is only if there is an objection to the hearing on the ground that it is not timely that an adequate record will be prepared on this issue.
In sum, we conclude that respondents have waived this contention both by failing to raise it in the trial court and by failing to present an adequate record that allows us to review and decide this matter.
DISPOSITION
The order denying appellants’ motion to strike pursuant to section 425.16 is reversed, and the case is remanded with directions to enter an order granting appellants’ motion to strike. Appellants are to recover their costs on appeal.
We concur: COOPER, P. J., EGERTON, J.
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.