Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. KC046741. Abraham A. Khan, Judge.
Law Offices of Daniel J. Doonan, Inc., D. Scott Doonan and Lynne Rasmussen for Plaintiffs and Appellants.
Craton & Switzer, Robert E. Tokar, Curt R. Craton and Michael J. Emling for Defendants and Respondents.
WILLHITE, J.
INTRODUCTION
This appeal challenges the trial court’s denial of a motion brought pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16) to strike a cross-complaint. The cross-complaint alleges that appellants committed, among other things, assault, battery and conversion at or around the same time they served summons and complaint in a related lawsuit. Appellants’ motion to strike claimed that section 425.16 applied because the torts arose out of a protected activity: service of a lawsuit. The trial court disagreed, finding that none of the intentional torts arose out or were related to protected activity. We affirm.
All undesignated statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Complaint
To give proper context to the allegations in the cross-complaint, we first briefly set forth the allegations found in the complaint, the service of which gave rise to the cross-complaint. Plaintiff Gloria Fuerte became delinquent in the mortgage payments on her home. The defendants pretended to help her by claiming they would obtain a loan for her, the proceeds of which she could use to cure her default. In fact, the defendants tricked her into signing a deed of trust, grant deed and rental agreement for the home. The defendants used those documents to obtain loans against her property and then embezzled the loan proceeds.
2. The Cross-Complaint
Several of the defendants named in Fuerte’s lawsuit filed a cross-complaint against her and her attorney based upon events occurring during the service of summons and complaint of Fuerte’s action. The first amended cross-complaint alleges the following. On August 15, 2005, Fuerte went to the office of the Bellasi Escrow Corporation (Bellasi) to sign final escrow documents and receive a check. She was accompanied by Daniel J. Doonan. Although Fuerte told Bellasi employees that Doonan was her driver, he was, in fact, her attorney. Fuerte and Doonan arrived and entered the office of Shelia Milstead, a Bellasi employee. Milstead explained the documents to Fuerte. Edward Ok joined the meeting to answer Doonan’s questions. At this point, the torts were purportedly committed. Allegedly, “Doonan suddenly and aggressively raised his arm and hand, moved at Milstead, grabbed the Fuerte Escrow papers from her without her consent and to her complete surprise, shock, and astonishment, and placed the documents inside an accordion file folder he had brought with him.” Milstead asked Doonan to return the documents but he refused. Ok, who was standing in the doorway to Milstead’s office, also demanded return of the documents. “Doonan moved at Ok and yelled in Ok’s face that Ok should not to [sic] touch Doonan or he would file a battery charge. Ok moved away from the doorway.” Doonan and Fuerte then “laughed and threw copies of the summons and complaint [in Fuerte’s lawsuit] on Milstead’s desk,” and left the office, “refusing to return the escrow documents.”
The cross-complaint does not explain Ok’s relationship to Bellasi.
Relying on the above allegations, the cross-complaint alleged that Fuerte, Doonan, and Doonan’s law firm were liable to Milstead, Ok and Bellasi for, inter alia, assault, battery, conversion and conspiracy to commit those intentional torts. The cross-complaint alleged that Milstead had filed a police report about the incident.
The cross-complaint included additional causes of actions but all were derivative of the facts set forth above. The pleading alleged claims for intentional and negligent interference with contract based upon the conversion of the escrow documents. A cause of action for negligence per se (Evid. Code § 669, subd. (a)) was based upon the claims that Doonan had committed an assault (Pen. Code, § 240) and battery (Pen. Code, § 242) and that Doonan and Fuerte had committed grand theft (Pen. Code, § 487.) Lastly, a cause of action seeking declaratory relief against Doonan and Doonan’s law firm for comparative indemnity claimed that to the extent Fuerte’s action against Bellasi, Ok and Milstead sought damages arising out of the foreclosure of her home, those damages were caused “entirely or in part” by Doonan’s taking of the escrow documents.
3. The Anti-SLAPP Motion
Citing the anti-SLAPP statute, Fuerte, Doonan and Doonan’s law firm (hereafter appellants) moved to strike the cross-complaint. In regard to the events of August 15, 2005, their motion claimed: “The whole purpose of the visit was to serve process, and that purpose was completed. There was no physical contact between any of the persons present.” The motion essentially conceded that Fuerte left with two documents Milstead had given her to sign (the Escrow Closing Statement and Escrow Amendment) but claimed that the allegation about “theft of the escrow file” was “fabricated.”
Based upon the above characterization of the facts, appellants urged that Fuerte’s actions were, “in all respects, [an] exercise of her constitutional right arising from her acts in furtherance of her right of petition or free speech” and Doonan’s “total contact . . . was the service of the Complaint . . . by personal service. The advocate activities [sic] arose out of the exercise of the right of free expression.”
Appellants did not include any affidavits about the operative events with their motion to strike. They furnished only a declaration about costs, including attorney fees, incurred in bringing the motion.
4. Opposition to the Motion to Strike
Milstead, Ok and Bellasi (hereafter respondents) filed opposition to the motion to strike. Relying upon their cross-complaint’s allegations, they urged that all of their causes of action arose solely from Doonan’s conduct in taking the escrow documents from Milstead and threatening Ok so that nothing in their pleading “chill[ed] protected activity within the meaning of [section 425.16].”
5. Reply to Opposition
Appellants’ reply to respondents’ opposition presented a declaration from Doonan giving his version of the events, including a denial that he committed any torts. Appellants’ reply did not explain why they were tendering Doonan’s declaration. Because Doonan completely denied that any torts were committed, the only apparent use for his declaration would be to assist the trial court in determining whether there was a probability respondents would prevail upon the cross-complaint if it first found that appellants had engaged in protected activity. As set forth below, the trial court never reached the second step of the analysis.
6. The Trial Court’s Ruling
Prior to the hearing on the motion to strike, respondents filed evidentiary objections to Doonan’s declaration, including the argument that appellants had improperly raised new argument and presented new evidence in their reply. At the hearing, the trial court did not rule on the objections and none of the parties brought that oversight to the court’s attention. The trial court denied the motion to strike, explaining: “[E]ach of the causes of action in the cross-complaint is based upon allegations of assault, battery, and conversion, none of which constitutes 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.”
DISCUSSION
Section 425.16 establishes a procedure to strike a pleading primarily brought to “chill” the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 197.)
Appellate review of an order denying a motion to strike involves a two-step process. First, we must determine whether the moving parties (here, appellants) made a threshold showing that the challenged causes of action (here, the entire cross-complaint) arose out of acts done in furtherance of their exercise of the right to petition. If appellants failed to meet this threshold burden, the trial court was required to deny the motion to strike. On the other hand, if appellants had met that burden, then the parties who filed the pleading (here, respondents) were required to establish a probability of prevailing on the merits of their claims. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th1049, 1056-1057.) The trial court denied the motion to strike because it found appellants had failed to establish that the cross-complaint arose out of protected activity. We conduct a de novo review of that ruling and conclude that it was correct. (Blackburn v. Brady (2004) 116 Cal.App.4th 670, 676.)
In deciding whether the cross-complaint comes within the purview of the anti-SLAPP statute, the focus is not on the form of the causes of action but rather on the activity that gave rise to appellants’ purported liability. “[T]he critical consideration is whether the cause of action is based on [appellants’] protected free speech or petitioning activity. [Citations.]” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) Here, appellants contend, and respondents do not contest, that service of process constitutes protected activity because it is part and parcel of the constitutional right to petition the courts for redress. Building upon that premise, appellants argue that “[a]ny torts that may have been alleged to be committed by [them] in the instant context were incidental to the service of process” and therefore constitute protected activity. Or stated another way, appellants claim that the cross-complaint’s allegations “are merely complaints about the manner in which . . . Appellants went about their protected petitioning activity.” We are not persuaded.
The governing principle is that “when the allegations referring to arguably protected activity [here, service of process] are only incidental to . . . cause[s] of action based essentially on nonprotected activity [here, the intentional torts], collateral allusions to protected activity should not subject the cause[s] of action to the anti-SLAPP statute.” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.)
Respondents’ reference to appellants’ service of process is merely incidental or collateral to the thrust of their allegations that appellants committed intentional torts. The reference simply set forth one of the reasons that Fuerte and Doonan had gone to the Bellasi office. Appellants’ claim that “but for the intended purpose of serving the Complaint, Mr. Doonan would not have been in Respondents’ place of business to engage in whatever conduct Respondents now complain of” misses the mark. The point is that none of the torts is based upon the actual service of process. Doonan served process when he placed the documents on Milstead’s desk but no cause of action is based upon that fact. The assault and battery of Milstead occurred when Doonan grabbed the escrow papers from Milstead. The assault of Ok occurred when Doonan yelled in Ok’s face. The conversion occurred when Doonan left with the escrow papers after having taken them from Milstead. Hence, the thrust of the cross-complaint is Doonan’s tortious conduct, not his service of the complaint. Because none of the torts was based upon an act done in furtherance of appellants’ right to petition (e.g., none was committed to effectuate service of process), the cross-complaint does not arise from protected activity. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)
Because the other causes of action in the cross-complaint were derivative of these three torts (see fn. 3, ante), they were likewise independent of the service of process.
Appellants’ reply brief cites, for the first time, Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009 and In re Ball (1934) 2 Cal.App.2d 578 to support their argument that the intentional torts “were part and parcel of service of the Complaint.” These authorities do not support appellants. The issue in the two cases was whether there had been proper service of process. In making that determination, the court simply considered, as it should, all of the process server’s actions. Nothing in those cases touches upon the issue raised here: are the intentional torts alleged in the cross-complaint protected activity within the meaning of section 425.16.
Appellants’ reliance on Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228 (Huntingdon) to support a contrary conclusion is misplaced. There, the plaintiff filed an action for, inter alia, trespass, harassment, invasion of privacy, and infliction of emotional distress and obtained injunctive relief against an animal rights organization and its members. The organization’s members had committed vandalism at the plaintiff’s residence, trespassed onto her property, and picketed in front of her home. Based upon the anti-SLAPP statute, the defendants brought a motion to strike the plaintiff’s complaint. The first issue was whether the allegations in plaintiff’s complaint arose from constitutionally protected activity. The appellate court reasoned: “Vandalism, of course, is not a legitimate exercise of free speech rights, and if the complaint arose only from such conduct it would not be subject to an anti-SLAPP motion. Each cause of action, however, also alleges protected activity such as [the organization’s] encouragement of demonstrations against animal testing and support of ‘those who choose to operate outside the confines of the legal system.’ Indeed, the gravamen of the action against defendants here is based on their exercise of First Amendment rights.” (Id. at p. 1245.) Because the protected activity was not incidental to the unprotected conduct, the reviewing court concluded that the anti-SLAPP statute applied. (Ibid.) Further, the court rejected the plaintiff’s argument that her action was “not a SLAPP suit because [she] merely [sought] to enjoin illegal activity such as trespass.” (Ibid.) It reasoned that a plaintiff’s allegations that a defendant acted illegally did not render the anti-SLAPP statute inapplicable. Absent a defense concession of illegality or conclusive evidence of illegality, the issue could only be resolved when the court addressed the second step in its analysis of the anti-SLAPP motion: had the plaintiff established a probability of success on the merits?
Huntingdon is readily distinguishable from this case. There, the unprotected tortious conduct was inextricably bound up with the protected conduct of publicizing and commenting on a matter of public concern (animal rights) and thus could not be considered incidental. Here, on the other hand, the unprotected conduct (assault, battery, and conversion) was, as explained above, clearly separate from and independent of the protected act of serving process. Because the protected conduct was incidental to the tortious acts, appellants cannot invoke the anti-SLAPP statute. In sum, the trial court properly denied the motion to strike the cross-complaint as it did not arise from protected activity. Therefore, the burden never shifted to respondents to demonstrate a probability of prevailing upon their claims. As such, there is no need to address the legal significance, if any, of respondents’ failure to ask the trial court to rule upon their evidentiary objections to Doonan’s declaration and whether that declaration established that respondents could not prevail upon their claims.
DISPOSITION
The order appealed from is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.