Opinion
B290000
02-04-2020
ETTA HINDRA, Plaintiff and Appellant, v. KELLY ANDREW BEALL, Defendant and Respondent.
Etta Hindra, in pro. per., for Plaintiff and Appellant. Wolfe & Wyman and Kelly Andrew Beall for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC645977) APPEAL from an order of the Superior Court of Los Angeles County. Michelle Williams Court, Judge. Affirmed. Etta Hindra, in pro. per., for Plaintiff and Appellant. Wolfe & Wyman and Kelly Andrew Beall for Defendant and Respondent.
____________________
Plaintiff and appellant Etta Hindra (Hindra) challenges a trial court order granting defendant and respondent Kelly Andrew Beall's (Beall) motion to strike Hindra's third amended complaint (TAC) pursuant to Code of Civil Procedure section 425.16, California's anti-SLAPP statute.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
SLAPP is an acronym for strategic lawsuit against public participation. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 813, overruled in part on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5 (Equilon).)
We conclude that Hindra's claims fall squarely within the scope of the anti-SLAPP statute and that she has not demonstrated a probability of prevailing. Accordingly, we affirm the trial court's order.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
Hindra is the former owner of certain real property located at 2712 Westwood Boulevard in Los Angeles (the Subject Property). Deutsche Bank National Trust Company as trustee for Morgan Stanley Loan Trust MSM 2005-6AR (Deutsche Bank) foreclosed on the Subject Property on January 11, 2016. Deutsche Bank then filed an unlawful detainer action against Hindra and obtained a judgment for possession on August 25, 2016. Hindra was evicted from the Subject Property.
At some point thereafter, Wolfe & Wyman LLP substituted into the unlawful detainer action postjudgment to represent Deutsche Bank. Beall is an attorney and partner with Wolfe & Wyman LLP. Wolfe & Wyman LLP represented Deutsche Bank in approximately seven other lawsuits involving Hindra, all of which were handled by Beall.
Beall's only conduct with Hindra in these lawsuits included: the filing and service of various motions and other pleadings; corresponding through e-mails and letters concerning matters arising in the various lawsuits; communicating telephonically concerning matters arising in the various lawsuits; and appearing at all court hearings on motions. All of Beall's communications with Hindra were the result of settlement discussions initiated by Hindra and court-ordered conferences related to motions or requests filed by the parties. Beall had no contact with Hindra other than what was necessary to defend against her lawsuits against Deutsche Bank, Beall's client.
Hindra was declared a vexatious litigant on January 22, 2018, in Hindra v. Harvey, Los Angeles Superior Court case No. BC645975.
Procedural Background
On January 6, 2017, Hindra filed the instant lawsuit against Beall. She later filed several amended complaints. The operative pleading appears to be the TAC, filed January 24, 2018. The TAC contains five causes of action, the gravamen of which seem to be that Deutsche Bank's foreclosure and her subsequent eviction were in violation of California law.
On March 19, 2018, Beall filed an anti-SLAPP motion, seeking to strike the TAC. Relying heavily upon the litigation privilege (Civ. Code, § 47, subd. (b)), he argued that his conduct was protected because his only involvement with the issues raised in the TAC was that he was an attorney with Wolfe & Wyman LLP, the attorney of record for Deutsche Bank in several lawsuits filed by Hindra. Moreover, Hindra could not prevail on her claims against Beall as he did not "take, remove, steal or damage any personal property from the Subject Property," he "did not foreclose on the Subject Property," and he "did not evict" her from the Subject Property. He requested $2,252.50 in attorney fees.
Hindra opposed the motion. Her opposition is largely unintelligible; she objects to the timing of the anti-SLAPP motion and to Beall's request for attorney fees.
On May 3, 2018, the trial court granted Beall's motion to strike. He was awarded $1,790 in attorney fees and costs. A judgment of dismissal was entered, and Hindra's timely appeal ensued.
DISCUSSION
The major problem with Hindra's appeal lies in her opening brief. As another court observed in describing a similarly inadequate brief, "[i]ndeed, this document is strongly reminiscent of those magazine puzzles of yesteryear where the reader was challenged to 'guess what is wrong with this picture.'" (People v. Dougherty (1982) 138 Cal.App.3d 278, 280.)
It is well-established that a trial court judgment is "'presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Hindra has not overcome this burden. Issues are raised that are not thoroughly fleshed out or supported by record citations and/or legal authority. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellant bears the burden of supporting a point with reasoned argument]; County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 [appellant must present argument on each point made]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [appellate court is not required to make an independent, unassisted search of the appellate record].) We decline to consider the issues raised in Hindra's opening brief that are not properly presented or sufficiently developed to be cognizable, and we treat them as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; In re David L. (1991) 234 Cal.App.3d 1655, 1661; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.) Hindra's election to act as her own attorney on appeal does not entitle her to any leniency as to the rules of practice and procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
With these principals in mind, we have attempted to address the merits of the issues raised by Hindra.
I. Standard of review
"We review the trial court's rulings on a SLAPP motion independently under a de novo standard of review. [Citation.]" (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929.)
II. The anti-SLAPP statute
Section 425.16, subdivision (b)(1), provides: "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." The statute "posits . . . a two-step process for determining whether an action is a SLAPP." (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)
First, the defendant bringing the special motion to strike must make a prima facie showing that the anti-SLAPP statute applies to the claims that are the subject of the motion. (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 819.) In other words, the moving defendant must show that his or her acts arose from protected activity. These acts include an "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 "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." (§ 425.16, subd. (e); see also Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805, 811.)
Once a moving defendant has met its burden, the motion will be granted (and the claims stricken) unless the court determines that the plaintiff has established a probability of prevailing on the claim. (DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567-568.)
In order to establish a probability of prevailing, a plaintiff must substantiate each element of the alleged cause of action through competent, admissible evidence. (DuPont Merck Pharmaceutical Co. v. Superior Court, supra, 78 Cal.App.4th at p. 568; see also Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89 [reiterating that "'the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited"'"].) "This requirement has been interpreted to mean that (1) when the trial court examines the plaintiff's affidavits filed in support of the plaintiff's second step burden, the court must consider whether the plaintiff has presented sufficient evidence to establish a prima facie case on his causes of action, and (2) when the trial court considers the defendant's opposing affidavits, the court cannot weigh them against the plaintiff's affidavits, but must only decide whether the defendant's affidavits, as a matter of law, defeat the plaintiff's supporting evidence." (Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 184.) Only if the plaintiff fails to meet this burden, is the motion properly granted. (Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1188-1189.)
III. The trial court properly granted Beall's anti-SLAPP motion
Applying the foregoing principles, we first determine whether Hindra's claims fall within the scope of the anti-SLAPP statute. They do. An act in furtherance of a person's right of petition or free speech in connection with a public issue includes "any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body." (§ 425.16, subd. (e).) "It is well established that the protection of the anti-SLAPP statute extends to lawyers and law firms engaged in litigation-related activity." (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 113.) "In fact, courts have adopted 'a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.' [Citation.]" (Ibid.) If the challenged conduct arises from the litigation, it falls within the scope of the anti-SLAPP statute. (Id. at p. 114.)
Here, the undisputed evidence establishes that Beall's only involvement with Hindra was in his capacity as an attorney with Wolfe & Wyman LLP, the attorney of record for Deutsche Bank in several lawsuits involving Hindra. He filed and served motions, oppositions to motions, and other pleadings and papers in the lawsuits. He corresponded with Hindra concerning matters arising in the various lawsuits. He communicated telephonically with Hindra concerning matters arising in the lawsuits. And, Beall appeared at all court hearings. All of the communications were related to the litigation. It follows that his conduct arose from activity protected by section 425.16.
In urging us to affirm, Beall focuses on the litigation privilege (Civ. Code, § 47, subd. (b).) "Notwithstanding [the] relationship between the litigation privilege and the anti-SLAPP statute . . . , the two statutes are not substantively the same." (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) We reach our conclusion without reference to the litigation privilege.
Having determined that Hindra's claims fall within the scope of section 425.16, we turn to the question of whether she demonstrated a probability of prevailing on her causes of action. She has not met her burden. Her first cause of action seems to be for the loss of or damage to personal property. But Hindra offers no evidence that Beall took or damaged any of her property. Her second and third causes of action appear to be wrongful foreclosure and/or wrongful eviction. But, Beall did not foreclose on the Subject Property or evict Hindra from the Subject Property. The fourth cause of action is unintelligible—she appears to raise some sort of claim regarding wrongful access of Subject Property on two occasions. But Hindra never explains how Beall is liable to her on this cause of action. And the fifth cause of action asserts that Beall "tried illegally to dismiss all the HomeOwner good intention to repossess the house, all the actions was illegal and fraudulent." But she provided no evidence that Beall engaged in any sort of wrongful conduct. Thus, she has not demonstrated a probability of prevailing on her claims.
DISPOSITION
The order is affirmed. Beall is entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
ASHMANN-GERST We concur: /s/_________, P. J.
LUI /s/_________, J.
CHAVEZ