Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-04-437106
NEEDHAM, J.
Creditors Trade Association, Inc., dba Great Western Collection Bureau (CTA), Gary E. Looney (Looney), and Fund Recovery Services, Inc., dba Accounts Receivable Management (Fund), appeal from the denial of their anti-SLAPP motions to strike the complaint of respondents Sharon Chiu (Chiu) and Christina Seelye (Seelye). (Code Civ. Proc., § 425.16.) Appellants contend that Chiu and Seelye failed to establish a probability of prevailing on their first two causes of action, and that the wrongdoing alleged as the basis for those claims was subject to the litigation privilege set forth in Civil Code section 47. Chiu and Seelye respond that the appeal is now moot because they dismissed their complaint during the pendency of the appeal. They also urge that: their complaint was not subject to the anti-SLAPP statute because appellants’ alleged wrongdoing was not constitutionally protected; the trial court correctly found that Chiu and Seelye had established a probability of prevailing on the merits of their claims; and the litigation privilege does not apply. In addition, they argue, if the trial court’s order is reversed they should not be liable for attorney fees under the anti-SLAPP statute.
Except where otherwise indicated, all further section references are to the Code of Civil Procedure. “Appellants” refers in the aggregate to CTA, Looney, and Fund. “Cross-respondents” refers to CTA and Looney. “Respondents” and “Cross-appellants” refer collectively to Chiu and Seelye.
By way of cross-appeal, Chiu and Seelye further contend that the trial court erred in dismissing as moot their third cause of action, which sought to set aside a default judgment entered in an underlying proceeding.
We will reverse the trial court’s order and remand the case for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
In 2002, Chiu and Seelye were principals of Elibrium, Inc. Elibrium, Inc., failed to pay a supplier over $43,000. The supplier assigned the bill for collection to appellant CTA. This led to collection cases known as Elibrium I and Elibrium II, as well as the matter now before us.
A. The Collection Cases
1. Elibrium I
Appellant Fund, a subsidiary of CTA, sued Elibrium, Inc., in San Mateo County Superior Court on the assigned claim in February 2003 (Elibrium I). Represented by attorney Anthony L. Head, Fund obtained a default judgment against Elibrium, Inc., and Seelye in July 2003. Fund assigned its rights to the debt back to CTA.
2. Elibrium II
When attempting to enforce the judgment rendered in Elibrium I, CTA learned that Elibrium, Inc., had transferred its assets to a company called Elibrium, LLC. In August 2003, CTA, represented by attorney Head, brought suit against Elibrium, LLC, and Chiu in San Mateo County Superior Court alleging a fraudulent conveyance of assets (Elibrium II). In December 2003, CTA obtained a default judgment in this action against Elibrium, LLC, and Chiu for over $50,000.
CTA levied on a bank account of Elibrium, LLC. Elibrium, LLC, and Chiu, claiming ignorance of the debt and the Elibrium II lawsuit, brought a motion to quash the levy and to set aside the default judgment entered against them. CTA associated attorney Douglas B. Provencher. The court denied the motion, as well as respondents’ subsequent motion for reconsideration in March 2004. The orders were affirmed. (Creditors Trade Association, Inc. v. Elibrium (Feb. 23, 2005, A105953) [nonpub. opn.].) The result of Elibrium II, therefore, was a final judgment against Elibrium, LLC, and Chiu for the underlying debt of Elibrium, Inc.
3. Elibrium I Resolved
Seelye and Elibrium, Inc., brought a motion in San Mateo County Superior Court to vacate the default and default judgment against them in Elibrium I, claiming that neither defendant was served with the complaint and summons. The court vacated that judgment in July 2004. Fund’s litigation against Seelye and Elibrium, Inc., went forward in Elibrium I, while the appeal of CTA’s judgment against Chiu and Elibrium, LLC, was pending in Elibrium II.
In February 2005, Elibrium, Inc., allowed judgment to be entered against it in Elibrium I. At this point there were judgments in both Elibrium I and in Elibrium II based on the same underlying debt.
According to Provencher’s representations in the trial court, the judgment in Elibrium II was paid and a satisfaction of judgment was filed in both Elibrium I and Elibrium II.
B. The Present Proceeding
In 2004, while the appeal in Elibrium II was still pending, Chiu and Seelye filed a lawsuit in San Mateo County Superior Court against CTA, Fund, Gary E. Looney (CTA’s president and former president of Fund), attorneys Head and Provencher, the law firm of Provencher & Flat, LLP, Kevin Ardoin (the process server), and Collectronics, Inc. (another collection agency in which Looney was an officer). When advised that venue was improper, Chiu and Seelye dismissed and refiled their action in San Francisco Superior Court on December 15, 2004.
Chiu and Seelye alleged that all of the defendants, including respondents CTA, Looney, and Fund, engaged in a conspiracy to obtain default judgments in collection cases by filing false proofs of service of the complaint and summons. Specifically, Chiu and Seelye alleged: “. . . continually from at least January 2003, through the date this complaint is filed, Defendants, and each of them, knowingly and willfully entered into a conspiracy to perpetrate a fraud on every court in California wherein Defendants have filed hundreds of collection actions, as well as a fraud on the defendants in such actions, by falsely claiming that defendants had been served with summons and complaint. The result of this conspiracy is that Defendants obtained default judgments to which they would not otherwise have been entitled, and from those judgments, Defendants were able to either collect the full amounts of monies that Defendants contended were owed, or coerce settlements.” Chiu and Seelye further alleged that the false proofs of service, which omitted the language “under penalty of perjury,” and the writs of execution the defendants had obtained based on the default judgments, violated the unfair competition law (Bus. & Prof. Code, § 17200 et seq. (UCL)) and constituted an abuse of process. In an additional cause of action, they asked the court to set aside the default judgment in Elibrium II—the same request that the San Mateo County Superior Court had previously denied.
CTA, Looney, Fund, and other defendants brought motions to strike Chiu and Seelye’s complaint under the “anti-SLAPP” provisions of section 425.16. They contended that the claims were subject to the anti-SLAPP statute because they targeted their exercise of their constitutional rights of petition and speech. Those claims had to be stricken, they asserted, because any purported wrongdoing alleged by respondents was protected by the litigation privilege set forth in Civil Code section 47 as a matter of law.
In their opposition to the motion to strike, Chiu and Seelye submitted evidence which, they claimed, established a prima facie case of abuse of process and violation of the UCL.
After a hearing, the trial court ruled on the motions by written orders filed on July 25, 2005. As to the first two causes of action, the court denied the motion to strike, finding that Chiu and Seelye’s evidence established a prima facie case. The court further found that the causes of action were not barred by the litigation privilege of Civil Code section 47, reasoning that acts to collect a debt constitute conduct rather than communication. As to the third cause of action to vacate the Elibrium II default judgment, the court dismissed the claim on the ground that it was moot. This ruling was based on Chiu and Seelye’s representation that they did not seek to recover for the debt that was the subject of the default judgment. Since the underlying debt had been settled and paid, the court concluded that the default judgment in Elibrium II had been fully satisfied.
The other defendants brought motions to strike the complaint under section 425.16 as well. The trial court granted Provencher & Flatt and Douglas B. Provencher’s motion. The motion of Collectronics was denied and was the subject of appeal number A110182. We issued our opinion in Chiu v. Collectronics, Inc. (A110182) on October 19, 2006, reversing the judgment in regard to Collectronics and remanding the matter for further proceedings.
CTA and Looney filed a notice of appeal from the order, as did Fund. (See § 425.16, subd. (i) [denial of anti-SLAPP motion is appealable under § 904.1].) Chiu and Seelye filed a cross-appeal as to the part of the order striking their third cause of action to vacate the Elibrium II default judgment.
During the pendency of these appeals, our Supreme Court issued its decision in Rusheen v. Cohen (2006) 37 Cal.4th 1048 (Rusheen)—which, as discussed post, confirms that appellants’ alleged wrongdoing was privileged under Civil Code section 47. Perhaps recognizing the impact of Rusheen on the viability of their case, Chiu and Seelye sought to voluntarily dismiss their claims in the trial court. Seelye attempted to dismiss her complaint in its entirety, while Chiu sought to dismiss all of her claims except her third cause of action (to vacate the Elibrium II default) as against CTA. Despite the pendency of the appeals, the court clerk entered the requested dismissals.
In May 2006, Chiu and Seelye filed a motion to dismiss the appeals on the ground that they were moot in light of the dismissals of the complaint. We denied the motions without prejudice, permitting Chiu and Seelye to address the mootness issue in their briefs on the merits.
The appeal of CTA and Looney and the cross-appeal of Chiu and Seelye (A111393), and the appeal of Fund (A111509), have not been consolidated. We hereby consolidate them for purposes of the issuance of this single opinion resolving both appeals, given the overlap of issues and nearly identical briefing.
II. DISCUSSION
We begin by addressing the appeal of CTA, Looney, and Fund in regard to the denial of their anti-SLAPP motions as to respondents’ first two causes of action for violation of the UCL and abuse of process. We conclude that the trial court erred in denying the motions to strike, and the purported dismissals of the complaint during the pendency of the appeals neither renders the appeals moot nor precludes an award of attorney fees to appellants under the anti-SLAPP statutes. We then turn to Chiu and Seelye’s cross-appeal as to their third cause of action, ruling that the court erred in denying the motions as to that claim and dismissing the claim on the ground of mootness.
A. Appellants’ Anti-SLAPP Motions
Section 425.16 authorizes a defendant to file a special motion to strike any cause of action that the plaintiff brought primarily to chill the exercise of the defendant’s constitutional rights of free speech and petition. It establishes a procedure by which the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. (Flatley v. Mauro (2006) 39 Cal.4th 299, 312 (Flatley); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192 (Varian).) In its motion, the defendant must make a prima facie showing that the plaintiff’s cause of action arises from the defendant’s free speech or petition activity. The burden then shifts to the plaintiff to establish a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) If the plaintiff fails to do so, the motion to strike is granted and the prevailing defendant is entitled to recover his or her attorney fees and costs. (§ 425.16, subd. (c).)
In pertinent part, section 425.16 provides: “(b)(1) 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. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(1) & (2).)
In opposing the anti-SLAPP motions, Chiu and Seelye were required both to plead a legally sufficient cause of action and to make a prima facie showing of facts by admissible evidence sufficient to sustain a favorable judgment. (Equilon, supra, 29 Cal.4th at p. 67; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685, fn. 24 (Paulus).) “The burden on the plaintiff is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment.” (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907-908.)
“‘Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider “the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” [Citations.]’” (Flatley, supra, 39 Cal.4that pp. 325-326.)
B. Does The Anti-SLAPP Statute Apply to Chiu and Seelye’s Claims?
As mentioned, the first prong of the relevant analysis requires appellants to make a prima facie showing that Chiu and Seelye’s causes of action arose from appellants’ free speech or petition activity. The use of the courts generally constitutes the required type of activity subject to the anti-SLAPP statute. (§ 425.16, subd. (e) [“‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a . . . judicial proceeding . . . ; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body . . . ; . . . (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”]; see Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735 [malicious prosecution].) Indeed, the parties agreed in the trial court that appellants’ alleged wrongdoing was constitutionally-protected activity subject to section 425.16, and the question before the court was merely whether Chiu and Seelye had demonstrated a reasonable probability of prevailing on the merits.
Nevertheless, Chiu and Seelye now contend in this appeal that appellants’ alleged wrongdoing is not subject to the anti-SLAPP statute because it constitutes extortion. They also contend that the anti-SLAPP statute does not apply because section 425.17, subdivision (b), exempts from the anti-SLAPP statutes certain actions brought solely in the public interest or for the public benefit.
Although Chiu and Seelye did not raise the section 425.17 issue in opposing the motions to strike, section 425.17 was discussed in the moving papers of CTA and Looney. Section 425.17, subdivision (b), reads: “Section 425.16 does not apply to any action brought solely in the public interest or on behalf of the general public if all of the following conditions exist: [¶] (1) The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member. A claim for attorney’s fees, costs, or penalties does not constitute greater or different relief for purposes of this subdivision. [¶] (2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons. [¶] (3) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff’s stake in the matter.” (§ 425.17, subd. (b)(1)-(3).) In the matter before us, subdivision (b)(1) was not met, because the claims of Seelye and Chiu do not affect the general public or, on this record, a large class of persons. The claims affect only individuals who had judgments entered against them by appellants and who contend they were never served with process; respondents do not present evidence as to how large a class this might be.
As a general matter, arguments not raised in the trial court will not be considered on appeal. Although we have discretion to consider a new argument regarding an issue of law applied to undisputed facts, Chiu and Seelye have not persuaded us that we should exercise this discretion. In particular, we note that the absence of any discussion of the
issue in the trial court was not merely because the court and parties proceeded without considering whether the activity was constitutionally protected, but because Chiu and Seelye affirmatively agreed that the alleged wrongdoing was within the ambit of the anti-SLAPP statute. The trial court observed: “The parties agreed that [Fund, CTA and Looney] met the first step [whether the alleged wrongdoing was protected activity subject to section 425.16]. Therefore, the Court focuses its analysis on the second step [whether plaintiffs’ established a prima facie case].” (Italics added.) We note as well that there was no allegation in respondents’ complaint, or in respondents’ argument on the motion to strike, that appellants’ activity constituted “extortion.”
Chiu and Seelye argue that we should nonetheless consider their new extortion argument because they base it on Flatley, supra, 39 Cal.4th 299, which was decided after the trial court’s denial of appellants’ motion to strike. Flatley, however, did not announce new law, but merely affirmed existing law that undisputedly illegal activity is not constitutionally protected and thus not the type of activity protected by the anti-SLAPP statutes. (See Flatley, supra, at pp. 313-314 [agreeing with Paul, post, that § 425.16 cannot be invoked by a defendant whose wrongdoing was illegal as a matter of law]; Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1364-1365, disapproved on other grounds in Equilon, supra, 29 Cal.4th at p. 68, fn. 5 (Paul) [campaign money laundering was undisputed illegal activity and thus not within anti-SLAPP statute].)
Given the parties’ agreement in the trial court that appellants’ alleged wrongdoing was protected activity for purposes of section 425.16, the burden shifted to Chiu and Seelye to demonstrate their probability of success on the merits. (Equilon, supra, 29 Cal.4th at p. 67.)
C. Probability of Success on the Merits (Litigation Privilege)
Chiu and Seelye asserted causes of action against appellants for the tort of abuse of process and, based on the same underlying wrongdoing, a violation of the UCL. Because the UCL proscribes any unfair or fraudulent business act or practice, evidence sufficient to establish an abuse of process will, for these purposes, be sufficient as well to establish a violation of the UCL.
As alleged in the complaint, the unfair or fraudulent business act or practice included violations of: “CCP §446 (requirement to verify pleadings); Penal Code §118 (perjury); Penal Code §127 (subornation of perjury); CCP §1209[(a)(4)] (contempt of court, including abuse of court processes); B&PC §6068 (attorneys’ duties to courts); and B&PC §6178(a) (deceiving courts and/or parties).” These violations, however, were based on the same actions underlying the abuse of process claim, including “knowingly and willfully pretending to serve summons and complaint, and then filing false [declarations of service],” “fraudulently obtaining default judgments,” and “obtain[ing] writs of execution and wrongfully levied” on victims’ accounts.
The tort of abuse of process targets a person’s use of a legal process against another person to accomplish a purpose for which the legal process was not designed. To establish an abuse of process claim, the plaintiff must show that the party employing the legal process (1) had an ulterior motive and (2) perpetrated a willful act in using the process in a manner that is not proper in the regular conduct of the proceedings. (Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1019 (Drum); Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168.)
The parties debate whether Chiu and Seelye submitted sufficient admissible evidence to establish a prima facie abuse of process claim against appellants under a conspiracy theory. We need not resolve this debate. If appellants’ alleged conduct was privileged under Civil Code section 47, the evidence offered by Chiu and Seelye was insufficient as a matter of law. (Flatley, supra, 39 Cal.4th at p. 323 [litigation privilege is relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense plaintiff must overcome to demonstrate a probability of prevailing].) We therefore turn to the litigation privilege.
1. Scope of the Litigation Privilege
Civil Code section 47, subdivision (b)(2), provides an absolute privilege for statements “(1) made in [a] judicial or quasi-judicial proceeding; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) [having] some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).) “The litigation privilege has been applied in ‘numerous cases’ involving ‘fraudulent communication or perjured testimony.’” (Flatley, supra, 39 Cal.4th at p. 322, citing Silberg, supra, at p. 218; Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 20, 22-26 [attorney’s misrepresentation of available insurance policy limits to induce the settlement of a lawsuit]; Doctors’ Co. Ins. Services v. Superior Court (1990) 225 Cal.App.3d 1284, 1300 [subornation of perjury]; Carden v. Getzoff (1987) 190 Cal.App.3d 907, 915 [perjury]; Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 642-643 [preparation of a forged will and presentation of it for probate]; O’Neil v. Cunningham (1981) 118 Cal.App.3d 466, 472-477 [attorney’s letter sent in the course of judicial proceedings allegedly defaming his client]; see also Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 284 (Manufacturers Life) [a UCL claim] and Brown v. Kennard (2001) 94 Cal.App.4th 40, 49-50 (Brown) [abuse of process].) The privilege applies even if the statements were made with actual malice or with intent to do harm. (O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 135 (O’Keefe).)
The litigation privilege immunizes only communicative acts. (Rusheen, supra, 37 Cal.4th at p. 1058.) Whether conduct is communicative or noncommunicative turns on the gravamen of the action; that is, whether the injury resulted from an act that was communicative in its essential nature. (Ibid.)
In determining whether the litigation privilege applies, we must also be mindful of its broad-based and important purposes. “‘The principal purpose of [Civil Code] section [47, subdivision (b)] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.’” (Flatley, supra, 39 Cal.4th at p. 321; Silberg, supra, 50 Cal.3d at p. 213.) It places upon litigants the burden of exposing witness bias or the falsity of evidence in the proceeding in which it occurred, “‘thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result.’” (Flatley, supra, at p. 322.) “For our justice system to function,” our Supreme Court has admonished, “it is necessary that litigants assume responsibility for the complete litigation of their cause during the proceedings.” (Silberg, supra, at p. 214.) In sum, “[g]iven the importance to our justice system of ensuring free access to the courts, promoting complete and truthful testimony, encouraging zealous advocacy, giving finality to judgments, and avoiding unending litigation, it is not surprising that section 47(2), the litigation privilege, has been referred to as ‘the backbone to an effective and smoothly operating judicial system.’” (Silberg, supra, at pp. 214-215.)
As our Supreme Court recently confirmed in Flatley, the litigation privilege applies even to such conduct as subornation of perjury because “‘it is in the nature of a statutory privilege that it must deny a civil recovery for immediate wrongs—sometimes even serious and troubling ones—in order to accomplish what the Legislature perceives as a greater good.’” (Flatley, supra, 39 Cal.4th at p. 324.) In Rusheen, the Supreme Court acknowledged that its expansion of the litigation privilege in the judgment enforcement context necessarily further narrowed the scope of the tort of abuse of process, but held that the result was consistent with modern public policy encouraging free access to the courts and finality of judgments by limiting derivative tort claims arising out of litigation-related misconduct. (Rusheen, supra, 37 Cal.4th at p. 1063.) An absolute litigation privilege is desirable “‘. . . not because we desire to protect the shady practitioner, but because we do not want the honest one to have to be concerned with [subsequent derivative] actions . . . .’ [Citation.]” (Id. at p. 1064.)
2. The Litigation Privilege Applies to the Conduct Alleged by Respondents
In the matter before us, the alleged wrongdoing was preparing and filing false declarations of service of complaints and summons, obtaining default judgments to which appellants and their alleged co-conspirators were not entitled, and collecting on the judgments or using them to coerce settlements. There is no question that this alleged activity was made by or on behalf of litigants in a judicial proceeding. It is also clear that it was pursued in order to achieve the objects of the litigation and bore a connection to the action: the statements (false declarations, obtaining default judgments, collecting on the judgments) were made to accomplish the objectives of Elibrium I and Elibrium II, which were to collect the debt assigned to CTA by levy on the assets of Elibrium, Inc., Elibrium, LLC, Chiu, and Seelye. All of the wrongdoing for which appellants are alleged to be liable was designed to achieve that objective. As discussed ante, the fact that the conduct was fraudulent or malicious is immaterial to the application of the litigation privilege. (O’Keefe, supra, 84 Cal.App.4th at p. 134.)
The trial court nevertheless concluded that the litigation privilege did not apply because the conspirators’ wrongdoing consisted of noncommunicative acts rather than communicative conduct. We first consider the law at the time of the trial court’s decision, and then the subsequent ruling of our Supreme Court in Rusheen.
The filing of pleadings and declarations in litigation has long been deemed to be communicative conduct subject to the litigation privilege. (See Rubin v. Green (1993) 4 Cal.4th 1187, 1195-1196 (Rubin) [filing of pleadings is communicative]; Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770 [“Pleadings and process in a case are generally viewed as privileged communications.”]; Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1431 [signing and filing of perjurious declaration in the course of litigation is communicative].) Furthermore, actions taken to collect on a judgment have generally been held to constitute communicative acts. (Brown, supra, 94 Cal.App.4th at pp. 49-50 [barring abuse of process claim based on bank levy pursuant to invalid judgment]; O’Keefe, supra, 84 Cal.App.4th at pp. 134-135 [barring abuse of process claim based on bank levy pursuant to fraudulent abstract of judgment]; Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 64-66 [filing post-judgment motion for writ of sale].) Thus, all of the underlying wrongdoing of which Chiu and Seelye complained—filing false declarations of service, obtaining default judgments based on those declarations, and attempting to collect on the judgments—was subject to the litigation privilege under the weight of authority extant at the time of the trial court’s decision.
In the trial court, respondents relied on Drum, supra, 107 Cal.App.4th 1009. In Drum, the court held that the litigation privilege did not bar claims for damages caused by the defendants’ levy on real property pursuant to a writ of execution, because the act of the levy was not a communication. The court in Drum explained that although the preparation, filing, and serving of a judgment, as well as the application for a writ of execution and instructions to the levying officer, are all communicative, a noncommunicative act occurs “when the levying officer, on behalf of the judgment creditor, actually levies on the property.” (Id. at p. 1026.) In the matter before us, Chiu and Seelye did not contend that appellants were liable for the wrongful levy on their property, so Drum was inapposite. In any event, our Supreme Court disapproved Drum in Rusheen, to the extent inconsistent with its opinion. (Rusheen, supra, 37 Cal.4th at pp. 1060-1065.)
After the trial court’s decision and during the pendency of this appeal, our Supreme Court decided Rusheen, which not only confirmed that the filing of false declarations and obtaining default judgments thereon constituted communicative conduct subject to the litigation privilege, but also explained that even the act of levying pursuant to a judgment is subject to the privilege, if the gravamen of the complaint was the procurement of a default judgment based on allegedly false declarations of service. (Rusheen, supra, 37 Cal.4th at p. 1062.)
In Rusheen, as in the instant case, the plaintiffs obtained a default judgment against the defendant and levied on the judgment. (Rusheen, supra, 37 Cal.4th at pp. 1053-1054.) Defendant Rusheen brought a motion to vacate the default judgment, claiming he was never served. (Ibid.) The trial court denied the motion, finding that he had been served. On appeal, the default judgment was reversed and the matter remanded to the trial court, although the finding of effective service was not disturbed. (Id. at pp. 1054, 1062.) Rusheen then filed a cross-complaint against the plaintiff’s attorney (Cohen) for abuse of process, contending that Cohen had filed a false declaration of service, improperly took the default judgment, and permitted execution of the judgment. (Id. at p. 1054.) The trial court granted Cohen’s anti-SLAPP motion to strike Rusheen’s cross-complaint, finding that Rusheen had no reasonable probability of prevailing on his claims because Cohen’s alleged wrongdoing was privileged under Civil Code section 47. (Id. at p. 1054.) Rusheen appealed.
In rejecting Rusheen’s arguments, the Supreme Court reiterated that the communicative act of filing an allegedly false declaration of service of process fell within the litigation privilege. (Rusheen, supra, 37 Cal.4th at p. 1058.) The court then rejected the identical argument that respondents make here, that the gravamen of Rusheen’s action was a conspiracy to enforce a judgment obtained through the use of perjured declarations
(culminating in a noncommunicative act of enforcing the judgment). (Id. at p. 1059.) Noting that a civil conspiracy does not give rise to a cause of action unless an independent civil wrong has been committed, the court found that the gravamen of Rusheen’s cross-complaint was procurement of a judgment based on allegedly false declarations of service, and Rusheen’s claim was thus barred by the litigation privilege. (Id. at p. 1062.)
In the matter before us, the clear gravamen of Chiu and Seelye’s complaint was that appellants and their alleged co-conspirators obtained default judgments based on fraudulent declarations of service. Chiu and Seelye argue that the actual gravamen of their complaint was that appellants and the other conspirators perpetrated wrongdoing broader than and independent from filing false declarations of service, in that they engaged in a wrongful course of conduct to collect purported debts. Specifically, they contend that appellants engaged in a conspiracy to further unfair business practices designed to coerce individuals to pay business debts for which there is no individual liability; they insist that these unfair business practices are the true gravamen of the complaint. Documents such as the falsified proofs of service, they argue, are simply evidence of these unfair business practices. (See White v. Western Title Ins. Co. (1985) 40 Cal.3d 870, 888 [offers of compromise were evidence of prior course of tortious actions].)
Chiu and Seelye also point to a statement by the trial court that “the underlying wrongful conduct is not perjury arising from the communication (allegedly committed by filing the essentially communicative declarations and proofs of service), but rather the conduct of failing to effect proper service, of which the declaration is evidence.”
This argument is not persuasive. Any compensable harm respondents suffered was the result of the use of false declarations of service to obtain default judgments—not some broader scheme or course of conduct. (See Rusheen, supra, 37 Cal.4th at p. 1058 [gravamen of the action turns on the acts that allegedly resulted in injury].) All of the conspirators’ wrongful acts were communicative as defined by Rusheen.
Respondents’ other attempts to distinguish Rusheen are also unconvincing. First, they note that Rusheen did not involve a UCL claim. However, where, as here, the wrongful acts purportedly underlying a UCL claim are privileged, the UCL claim is precluded by the privilege as well. (Manufacturers Life, supra, 10 Cal.4th at p. 284 [UCL claim cannot be based on conduct that is absolutely privileged under, e.g., Civ. Code, § 47, subd. (b)]; Rubin, supra, 4 Cal.4th at pp. 1202-1203 [where conduct is within Civ. Code, § 47, subd. (b), it is absolutely immune from civil tort liability, including unfair competition claim]; Swanson v. St. John’s Regional Medical Center (2002) 97 Cal.App.4th 245, 249, disapproved on other grounds in Parnell v. Adventist Health System/West (2005) 35 Cal.4th 595, 608 [plaintiff cannot plead around the litigation privilege by relabeling the action a UCL claim].)
Next, respondents point out that Rusheen did not involve a conspiracy claim. (Rusheen’s conspiracy claim had been dismissed by the trial court.) Conspiracy is not an independent cause of action, but a doctrine of joint and several liability. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) Because civil conspiracy is not an independent tort, its only significance is that each member of the conspiracy may be held directly responsible as a joint tortfeasor, regardless of actual participation in the tortious act itself. (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1406, fn. 7.) Since an independent unlawful act is required (Rusheen, supra, 37 Cal.4th at p. 1062), and because the purported conspiracy here is based on privileged conduct, no conspiracy liability can exist as a matter of law.
Lastly, respondents argue that Rusheen should not be applied here because equitable concerns militate against its retroactive application. Respondents acknowledge that judicial decisions are generally given retroactive effect. (Laird v. Blacker (1992) 2 Cal.4th 606, 620 (Laird).) An exception to this rule may arise depending on the extent to which the change in law was foreshadowed and foreseeable, and the extent of reliance upon the former law. (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 400.) “In sum, ‘A court may decline to follow the standard rule when retroactive application of a decision would raise substantial concerns about the effects of the new rule on the general administration of justice, or would unfairly undermine the reasonable reliance of parties on the previously existing state of the law. In other words, courts have looked to the “hardships” imposed on parties by full retroactivity, permitting an exception only when the circumstances of a case draw it apart from the usual run of cases.’” (Laird, supra, at p. 620.) Seelye and Chiu contend that they relied on Drum and Kappel in filing their lawsuit, and they will be greatly harmed by reversal based on Rusheen because they will have no recourse for their injuries, and may further be liable for appellants’ attorney fees.
There is nothing in this case that draws it apart from ‘“the usual run of cases.’” (Laird, supra, 2 Cal.4th at p. 620.) In the first place, Rusheen did not introduce new law, but merely clarified existing law. Indeed, by the time respondents filed their complaint, there were authorities contrary to Drum and Kappel holding that acts taken to enforce a judgment were privileged, as well as ample authority that claims based on false declarations of service were privileged. When they initiated the lawsuit, they knew, or should have known, of the risk that they might be subject to a claim for its attorney fees under section 425.16, subdivision (c), if appellants’ conduct was found to be privileged.
Furthermore, the unavailability of an abuse of process claim or a UCL claim does not leave respondents entirely without recourse for appellants’ alleged wrongdoing. Respondents previously obtained an order setting aside the default judgment in Elibrium I (but later entered into a negotiated settlement of that case). The debt underlying Elibrium II was the same debt underlying Elibrium I. To the extent they incurred additional damages due to the alleged co-conspirators’ conduct, redress could have been pursued in the underlying cases. In any event, the “‘salutary policy reasons for an absolute [litigation] privilege supersede individual litigants’ interests in recovering damages for injurious publications made during the course of judicial proceedings.’” (Rusheen, supra, 37 Cal.4th at p. 1064 [citing Silberg, supra, 50 Cal.3d at p. 218].) Respondents fail to distinguish Rusheen.
Further, the purported wrongdoing of the conspirators may be addressed by other means. As the court in Rusheen recognized, the litigation privilege did not bar respondents from seeking sanctions in the underlying actions, and does not bar criminal prosecutions for perjury. (Rusheen, supra, 37 Cal.4th at pp. 1063, 1065.) While we conclude that respondents cannot maintain a UCL claim, we do not opine as to whether a governmental agency could do so.
As their final attempt to avoid the effect of the litigation privilege, Chiu and Seelye argue that the privilege does not apply to their first cause of action under the UCL, to the extent that the claim relies on communicative conduct between appellants and third parties (which would not be privileged), rather than communicative conduct between appellants and Chiu and Seelye. As alleged in their complaint and suggested by evidence in opposition to the motions to strike, other individuals (such as Mr. Snyderman) had default judgments entered against them by the conspirators even though they had not been served with the complaint or summons. Chiu and Seelye contend that communications between appellants and these other debtors can constitute evidence of appellants’ pattern of unfair business practices, which would support Chiu and Seelye’s claims against appellants. Conversely, they contend that the communications between appellants and Chiu and Seelye could be used as evidence to support the claims of other debtors against appellants, which Chiu and Seelye purport to pursue on a representative basis under their UCL claim.
For these propositions, Chiu and Seelye rely on: Rubin, supra, 4 Cal.4th at page 1204; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 924 (Kashian); and American Products Co., Inc. v. Law Offices of Geller, Stewart & Foley, LLP (2005) 134 Cal.App.4th 1332, 1346 (American Products). An examination of these cases demonstrates that Chiu and Seelye are incorrect.
Chiu and Seelye also point out that Rusheen was based on communications and conduct occurring between the defendant and the plaintiff, not between the defendant and third parties.
In Rubin, after the plaintiff had been sued in a prior action by the defendant, the plaintiff sued the defendant and the defendant’s attorneys under the UCL, on the ground that the attorneys perpetrated an unfair business practice by wrongfully soliciting the other defendants to sue him. The court held that the methods employed by the law firm constituted solicitation and were privileged communicative conduct. (Rubin, supra, 4 Cal.4th at pp. 1196-1197.) Furthermore, the court held that a plaintiff cannot cloak a privileged communication in a UCL claim, even one seeking injunctive relief, to avoid the litigation privilege. (Id. at pp. 1203-1204.) The court also observed—in dictum addressing the fact that the defendant lawyers were not necessarily immune from liability altogether—that members of the public who were not adversaries in collateral litigation involving the same attorneys would have the standing to sue the attorneys. (Rubin, supra, at p. 1204.) As applied to the matter before us, Chiu and Seelye are like the plaintiff in Rubin, not third party members of the public uninvolved in the communicative conduct, and their UCL claim is barred.
In Kashian, the plaintiff filed defamation claims, based on a letter the defendant wrote to the Attorney General, and a UCL claim seeking restitution and an injunction prohibiting the defendant from filing public interest environmental lawsuits. (Kashian, supra, 98 Cal.App.4th at pp. 901-902.) The defendant filed an anti-SLAPP motion to strike on the ground that his letter to the Attorney General and his environmental litigation activities were absolutely privileged under Civil Code section 47. (Kashian, supra, at pp. 902-903.) The court permitted the UCL claim, because the plaintiff was not a party to the litigation in which the defendant committed misconduct. (Id. at pp. 922-925.) The court in Kashian explained: “Here, Kashian was not a party to any of the environmental litigation that underlies his unfair competition claim against Harriman. Nor is the environmental litigation the subject of his two other causes of action for defamation. Thus, it appears Kashian is simply a member of the public for purposes of the first cause of action, which therefore is not foreclosed by the litigation privilege under Rubin.” (Kashian, supra, 98 Cal.App.4th at p. 924.)
In contrast to the claims in Kashian, respondents Chiu and Seelye’s claims were based on appellants’ activity in the litigation to which respondents were a party. As pled in the complaint and argued in the opposition to the motion to strike, the UCL cause of action relied not merely on the alleged wrongdoing perpetrated against third parties such as Mr. Snyderman, but additionally (indeed, primarily) on the wrongdoing perpetrated against respondents themselves.
Similarly distinguishable is American Products, in which the court reiterated that a plaintiff can bring a UCL claim based on communications related to litigation in which the plaintiff was not a party. The court opined: “Thus, the Kashian court concluded that while the litigation privilege will extend to an unfair competition claim against an attorney where the claim is founded on the attorney’s misconduct in earlier litigation against the plaintiff, such is not the case where the plaintiff was not a party to the earlier litigation. [Citations.] We agree. Here, APC was not a party to any of the litigation that underlies its unfair competition claim against the Geller defendants. Nor is the unfair business practices litigation the subject of APC’s other causes of action for interference with a contractual relationship and intentional interference with prospective economic advantage. Thus, it appears APC is simply a member of the public for purposes of the first cause of action, which therefore is not foreclosed by the litigation privilege under Rubin v. Green, supra, 4 Cal.4th 1187.” (American Products, supra, 134 Cal.App.4th at p. 1346.) Chiu and Seelye were not merely members of the public for purposes of their UCL claim.
Chiu and Seelye’s arguments on this issue are unpersuasive for other reasons. To the extent they argue that they could recover for themselves under their UCL claim by using evidence of appellants’ communicative conduct toward others, they still would have to establish that appellants obtained fraudulent default judgments against respondents. For reasons we have already stated, these matters are privileged and preclude the UCL claim. (Rubin, supra, 4 Cal.4th at p. 1204.)
To the extent Chiu and Seelye argue that their UCL claim can survive as a representative action on behalf of others, their reliance on Kashian and American Products is misplaced because the plaintiffs in those cases were pursuing purely representative UCL actions. (Kashian, supra, 98 Cal.App.4th at p. 924; American Products, supra, 134 Cal.App.4th at p. 1346.) Furthermore, Rubin, Kashian, and American Products preceded the amendment to Business and Professions Code section 17200, which now precludes individual plaintiffs from maintaining a UCL claim unless the plaintiffs personally suffered actual injury. (Bus. & Prof. Code, § 17204.) Because respondents’ personal relief is barred by the litigation privilege (Rubin), they cannot prove their UCL claim as a matter of law. (Bus. & Prof. Code, § 17204.)
In sum, the alleged wrongdoing of appellants is privileged under Civil Code section 47. Accordingly, Chiu and Seelye could not establish a reasonable probability of prevailing on their claims, and appellants’ motions to strike under section 425.16 should have been granted.
Respondents argue that, if the evidence they presented in the trial court is found to be insufficient to establish a prima facie case, they should be permitted to pursue discovery of appellants so that they can gather more evidence of a prima facie case. (The trial court had denied respondents’ request for discovery as moot after denying appellant’s anti-SLAPP motion.) There is no good cause for such discovery. Although the anti-SLAPP motions should have been granted, it was not because Chiu and Seelye had failed to produce sufficient admissible evidence, but because the litigation privilege bars their claims as a matter of law.
D. Mootness and Award of Attorney Fees
A defendant who prevails in moving to strike a complaint under section 425.16 is entitled to recover the attorney fees and costs it incurred in bringing the motion to strike. (§ 425.16, subd. (c).) This includes the right to recover such fees and costs incurred when prevailing as a respondent on appeal. (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499-1500.)
Chiu and Seelye maintain that, because they dismissed their complaint against appellants with prejudice during the pendency of this appeal, the appeal should be dismissed as moot. They further contend that, even if we entertain the appeal and reverse the trial court’s denial of the anti-SLAPP motion, they should not be required to pay attorney fees. We address each contention in turn.
1. Was There a Valid Dismissal in the Trial Court?
As a general matter, a plaintiff may voluntarily dismiss the complaint with or without prejudice upon request to the court clerk, prior to trial. (§ 581, subds. (b) & (c).) Once a notice of appeal has been filed in the trial court, however, section 916 provides for an automatic stay of trial court proceedings “upon the matters embraced” in or “affected” by the appeal. Because the trial court proceedings were stayed upon appellants’ filing of their notices of appeal, the trial court lacked jurisdiction to dismiss the case thereafter. (Varian, supra, 35 Cal.4th at pp. 188-189 [trial court had no jurisdiction to proceed with trial and enter judgment after appeal filed from order denying anti-SLAPP motion to strike].)
Chiu and Seelye argue that Varian only precludes a trial court from taking action after the filing of an appeal, and here it was the clerk who performed a ministerial act in recording their request for dismissal. They provide no authority for this distinction. To the contrary, whether a matter is embraced in or affected by the appeal, and thus outside the jurisdiction of the trial court, turns not on whether the matter was handled by the clerk or the judge, but on whether it would have any bearing on the effectiveness of the appeal. (Varian, supra, 35 Cal.4th at p. 189.) Here, dismissing the case would impact the effectiveness of appellants’ appeals, at least to the extent that appellants contend that they should recover attorney fees and costs as the prevailing party under section 425.16.
Because the trial court was without jurisdiction to dismiss the case during the pendency of the appeal, the dismissal is void on its face and cannot render the appeal moot.
2. The Dismissal, Even if Valid, Had No Effect on this Appeal
Even if the voluntary dismissal were valid, we would not be compelled to dismiss the appeal as moot. “A case is moot when [the decision of the reviewing] court can have no practical impact or provide the parties effectual relief.” (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.) “‘When no effective relief can be granted, an appeal is moot and will be dismissed.’” (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214.) This court can grant effective relief, because if we reverse the denial of their motions to strike the complaint, appellants may also be entitled to an award of attorney fees and costs under section 425.16, subdivision (c).
3. Appellants Are Entitled to Recovery of Attorney Fees.
Assuming the truth of respondents’ allegations of wrongdoing, respondents present a compelling equitable argument that they should not be required to pay appellants’ attorney fees. The anti-SLAPP statute nevertheless mandates an award of attorney fees to a prevailing defendant. (§ 425.16, subd. (c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131; Paulus, supra, 139 Cal.App.4th at pp. 685-686.)
Where a plaintiff dismisses his complaint after a motion to strike has been filed but before it is decided, the trial court must determine who would have prevailed on the motion and, if the defendant would have prevailed, award attorney fees. (Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 218 (Pfeiffer); Liu v. Moore (1999) 69 Cal.App.4th 745, 748 (Liu); see Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107 (Coltrain) [trial court has discretion].)
Respondents also cite S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374; (Jul. 31, 2006; 2006 Cal. LEXIS 9285 at *14). In that case, it was held that defendants were not entitled to attorney fees and costs where the action was dismissed before the filing of the anti-SLAPP motion, because section 425.16, subdivision (c) permits fees and costs only to the prevailing party. Here, Chiu and Seelye did not dismiss their action before the filing of appellants’ anti-SLAPP motion.
In this matter, however, Chiu and Seelye did not dismiss the action before the trial court ruled on the motion. We address, therefore, a somewhat different issue than that before the courts in Pfeiffer, Liu, and Coltrain: whether a defendant can recover attorney fees and costs pursuant to section 425.16, subdivision (c), where the plaintiffs prevailed against the anti-SLAPP motion in the trial court, but then attempted to dismiss the action before appellate reversal.
Had the trial court properly granted appellants’ motion to strike as to the first two causes of action, respondents would have been liable for attorney fees and costs under section 425.16, subdivision (c). We see no basis for a different result, merely because the trial court erred and the successful result was not obtained until decision on appeal. Nor can respondents be insulated from liability by efforts to terminate the litigation after the decision in Rusheen issued. They attempted to dismiss the case at a time when the trial court had no jurisdiction, and they unsuccessfully attempted to dismiss this appeal. Those efforts neither terminated the proceedings nor compensated appellants for the attorney fees and costs incurred in bringing a meritorious motion. Accordingly, this matter must be remanded to the trial court for entry of a new order granting the motion to strike the first two causes of action, and for further proceedings pursuant to section 425.16, subdivision (c). Any fee award must also consider appellate attorney fees. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1426.)
The amount of mandatory attorney fees awarded to a defendant who successfully brings an anti-SLAPP motion is within the discretion of the trial court. (Paulus, supra, 139 Cal.App.4th at p. 686.)
E. Chiu and Seelye’s Cross-Appeal
Chiu and Seelye cross-appeal from the trial court’s order on the ground that their third cause of action, which sought to have the Elibrium II default judgment set aside, should not have been dismissed. They maintain that their third cause of action was not barred by collateral estoppel.
1. Appealability
Cross-respondents CTA and Looney contend that Chiu and Seelye have no right to appeal immediately from the order dismissing their third cause of action, and the cross-appeal should therefore be dismissed. They argue that section 425.16, subdivision (i), which permits an immediate appeal from the grant or denial of an anti-SLAPP motion to strike, does not apply because the trial court denied the anti-SLAPP motion as to third cause of action and dismissed that claim as moot.
Cross-respondents’ position actually confirms that the dismissal of the third cause of action is appealable. CTA and Looney’s motion to strike was brought under section 425.16 as to all three of Chiu and Seelye’s causes of action. The trial court’s order, from which Chiu appeals, disposed of the motion to strike, indicating that the “motion to strike” the third cause of action was “denied as moot.” There is an immediate appeal from the denial of an anti-SLAPP motion to strike. (§ 425.16, subd. (i).)
2. Merits
Chiu and Seelye contend that their third cause of action was dismissed on the ground of collateral estoppel, because the court in Elibrium II denied their motion to vacate the default judgment and the ruling was affirmed on appeal. They then argue that collateral estoppel did not apply, because they have a right to bring an independent action in equity to have the judgment vacated, notwithstanding prior denial of the motion to vacate. For this proposition they rely on Groves and Sullivan. (Groves v. Peterson (2002) 100 Cal.App.4th 659, 661 (Groves) [“[T]he prior denial of a motion in the underlying case to set aside a default and default judgment has no collateral estoppel effect to bar an independent action in equity directly attacking the prior judgment.” (Italics omitted.)]; Sullivan v. Sullivan (1967) 256 Cal.App.2d 301, 303 (Sullivan) [independent action in equity permissible to vacate default judgment secured by extrinsic fraud].)
The trial court, however, did not dismiss the third cause of action on the ground of collateral estoppel, but on the ground that the claim was moot. The court ruled: “[Chiu and Seelye] have stated in court that they do not include in the damages they seek the debt that was the subject of the default judgment. Furthermore, because [Chiu and Seelye] made and defendants accepted a CCP § 998 settlement offer in the original collection action, the sole debt at issue has been settled. Plaintiffs have argued unpersuasively that defendants are attempting to collect twice on the same debt, which Plaintiffs have just lately acknowledged, and the payment of which required considerable effort to secure just once. For these reasons the Court DISMISSES the third cause of action as moot.” (Italics added.)
Here, because the debt underlying Elibrium I was paid by settlement, CTA’s complaint in Elibrium II was moot, because the debt for which CTA sought to recover had been satisfied. Chiu’s defenses to the allegations of the complaint would likely have been moot as well. But that does not mean that Chiu’s separate contention–that a default judgment should not have been entered against her–is also moot.
Notwithstanding the satisfaction of the debt underlying Elibrium I and Elibrium II, the trial court could still render effective relief to Chiu by setting aside the default and default judgment entered against her. The default judgment in Elibrium II was entered against both Chiu and Elibrium, LLC (a corporation). (Chiu seeks to have the default judgment vacated only to the extent it pertains to her, not to Elibrium, LLC.) The underlying debt was a corporate debt and was purportedly paid by a corporation, not Chiu personally. Yet Chiu has a public record showing that she allowed entry of a judgment against her based on serious allegations of fraud. By setting aside the default and default judgment, if appropriate, the trial court would relieve Chiu of this burden. The court erred in dismissing the third cause of action, on the ground that the claim was moot.
Cross-respondents do not establish that their motions as to the third cause of action should have been granted under the anti-SLAPP statute on the ground that Chiu had no reasonable probability of success due to the litigation privilege. The litigation privilege applies to tort claims (except malicious prosecution). (Rusheen, supra, 37 Cal.4th at p. 1057.) The third cause of action purported to be an independent action in equity to set aside the default and default judgment. On this basis, the motion to strike the third cause of action should have been denied.
The order is reversed as to the third cause of action. Upon remand to the trial court, the reversal of the ruling as to the third cause of action, in Chiu’s favor, may also be considered in the court’s determination of any award of attorney fees under the anti-SLAPP statute.
III. DISPOSITION
The appeal of CTA and Looney and the cross-appeal of Chiu and Seelye (A111393), and the appeal of Fund (A111509) are hereby consolidated for purposes of the issuance of this single opinion resolving both appeals.
The orders are reversed and remanded to the trial court for entry of new orders granting the motions to strike as to the first two causes of action, denying the motions to strike as to the third cause of action, and for further proceedings pursuant to section 425.16, subdivision (c). Any fee award must also consider appellate attorney fees.
We concur. SIMONS, Acting P. J., GEMELLO, J.