Opinion
A163748
12-21-2022
LOUIS A. LIBERTY, Plaintiff and Respondent, v. SYED ALI HUSAIN et al., Defendants and Appellants
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. 21CV00156
PETROU, J.
Syed Ali Husain was represented by Craig Smith of the Smith Law Firm (collectively "Defendants") in postjudgment efforts to enforce and collect on a 2012 judgment against Louis Liberty assigned to Husain.
As part of these efforts, Smith (on Husain's behalf) sent a payoff demand letter to the escrow agent handling the sale of a Fort Bragg property owned by Liberty; the letter demanded payment of $330,077.10 from the proceeds of the property sale to satisfy the 2012 judgment. Liberty sued Defendants on the basis that the payoff demand letter was fraudulent, inflated, and prevented the sale of the property. His complaint asserted multiple causes of action for damages and other equitable relief. In response, Husain filed a special motion to strike Liberty's complaint as a strategic lawsuit against public participation ("SLAPP") pursuant to Code of Civil Procedure section 425.16 et seq., and Smith and the Smith Law Firm (the "Smith Defendants") later filed their own motion to strike under the anti-SLAPP statute. Defendants argued their conduct was protected activity shielded by the litigation privilege and that Liberty could not prevail on his claims. After initially granting Husain's special motion to strike because Liberty had neither timely opposed it nor appeared at the initially scheduled hearing, the trial court set aside the order and proceeded to determine his motion on the merits alongside the one filed by the Smith Defendants. The court denied both motions.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
We conclude the court did not err in setting aside its initial order granting Husain's motion to strike as any neglect shown by Liberty in not timely opposing the motion or appearing at the hearing was excusable. As to Defendants' anti-SLAPP motions, we conclude the trial court properly found that Liberty's claims arose from protected activity which shifted the burden to Liberty to demonstrate a probability of success or prevailing on their claims.
However, the trial court erred in determining that the litigation privilege set forth in Civil Code section 47, subdivision (b) ("Section 47(b)") -which provides an absolute defense to tort damages based on a publication or broadcast made in any judicial proceeding - did not apply as a defense to any of Liberty's claims. The privilege shielded Defendants from four of Liberty's pleaded causes of action which were based in tort and sought damages, specifically, the causes of action for fraud, cloud on title, slander of title, and negligence. Since the privilege did not apply to claims seeking equitable relief, the trial court did not err in finding the privilege inapplicable to Liberty's equitable causes of action for quiet title and for injunctive and declaratory relief. We remand the case to the trial court to determine whether Liberty can establish a probability of prevailing on each of these remaining claims.
Factual and Procedural Background
A. The Underlying Dispute
In 2005, Liberty, an attorney, leased an Avaya telephone system from CIT Communications Finance ("CIT") for his business. Three years later, Liberty shuttered the business and sold the office building. Husain purchased various equipment from Liberty and specifically asked to buy the Avaya system, which Liberty refused to sell. However, when Husain offered to store the Avaya system for Liberty as Liberty was in the process of selling his home and office furnishings, Liberty agreed. A few months later, CIT demanded Liberty return the Avaya system. When Liberty asked Husain for the system, Husain reported that he had sent it to India and could not return it.
B. The San Mateo County Litigation
In December 2008, CIT sued Liberty for unpaid lease payments on the system in San Mateo County Superior Court in CIT Communications Finance Corporation, dba Avaya Financial Services v. Louis Liberty &Associates, Case No. CIV479070 (the "San Mateo Case"). In the same action, Liberty filed a cross-complaint against Husain for conversion of the system.
In August 2012, the complaint between CIT and Liberty was resolved. The San Mateo court entered judgment in favor of CIT against Liberty in the amount of $99,121.57 plus interest at the rate of 10% per annum (the "2012 CIT Judgment"). The judgment further provided that CIT shall recover from Liberty "possession of the Avaya telephone system that is a subject of the complaint in this matter, and consisting of: (1) an IP Office w GFI; (2) two IP Circuit Packs; and (3) two UPS Uninterupt Power Supplies." In September 2012, CIT filed an abstract of judgment in San Mateo County against Liberty in the amount of $99,121.57.
In October 2011, the San Mateo court presided over a bench trial of Liberty's cross-complaint against Husain on the conversion claim. In June 2013, the court issued a Statement of Decision setting forth its findings. The court found that Husain received the Avaya system in the summer of 2008 but refused to return it to Liberty when Liberty sought its return. The court also found that Husain had converted the Avaya system to his own use in November 2008. In deciding damages, the court noted that its award was based on "the value of the [Avaya system] as of November 2008, the date when the property was converted." The court determined the value of the system was $78,000. It concluded the Statement of Decision as follows: "Judgment in favor of Cross-Complainant LOUIS LIBERTY, and against SYED ALI HUSAIN to be entered in the amount of $78,000 and interest at 10% per annum from November 2008 to date of judgment. Judgment shall include costs of suit." In December 2013, the San Mateo court entered judgment in favor of Liberty (the "2013 Liberty Judgment"). The judgment entered stated: "IT IS ORDERED that LIBERTY have and recover judgment from Cross-Defendant Ali Husain, in the sum of $78,000.00, interest thereon at the rate of 10 percent per annum from the date of conversion of November 8, 2008; together with interest on the judgment as provided by law."
Husain appealed that judgment. In June 2015, this court affirmed the judgment awarding Liberty damages of $78,000 plus interest in the unpublished opinion, Louis Liberty &Associates v. Husain, Case No. A141048. There is no indication in the record that any of the parties satisfied or attempted to satisfy the judgments in the years that followed.
In March 2019, CIT filed an acknowledgement of assignment of the 2012 CIT Judgment to Husain. CIT identified itself as the judgment creditor since judgment had been entered in its favor in the amount of $99,121.57, and acknowledged that it had assigned to Husain "all of CIT's right, title, and interest in any sums of money due to CIT by reason of that Judgment."
B. Postjudgment Collection Efforts
In September 2020, Liberty listed for sale a house he owned in Fort Bragg (Mendocino County) and accepted an offer for the property. An escrow account was opened in conjunction with the pending sale.
On December 14, 2020, Smith on Husain's behalf wrote the escrow agent handling the Fort Bragg house sale. Husain demanded payment of $181,786.26, reflecting the principal ($99,121.57) and interest in the 2012 CIT Judgment assigned to him as of the date of the letter. He also requested additional per diem interest of $27.16 from the date of the letter.
On March 10, 2021, Smith sent the escrow agent an updated payoff demand letter stating that the prior demand was incorrect "as it did not account for the value of the phones" and that "[w]ithout that part of the judgment being addressed, we cannot give a full satisfaction of judgment." He revised the demanded payment to $330,077.10, reflecting the principal of $177,121.57 (the sum of the $99,121.57 judgment amount and $78,000 for the value of the Avaya system) plus interest thereon as of April 1, 2021. He also revised the requested additional per diem interest to $48.53 from April 1, 2021.
C. The Mendocino County Litigation
On March 20, 2021, Liberty sued Husain and the Smith Defendants in the ligation immediately underlying this appeal (the "Mendocino Case"). Liberty's complaint asserted seven causes of action: (1) fraud; (2) cloud on title; (3) slander of title; (4) quiet title; (5) injunctive relief; (6) declaratory relief; and (7) negligence.
In the complaint, Liberty alleged that the 2012 CIT Judgment "inadvertently provided that [CIT] would recover possession of parts of the Avaya telephone system consisting only of an IP office with GFI, two IP circuit packs and two UPS Uninterupt Power Supplies." He explained that the subsequent 2013 Liberty Judgment on his cross-complaint against Husain resulted in a $78,000 judgment against Husain in his favor based on the court's finding that Husain had converted the system. The complaint further alleged that the September 2012 abstract of judgment was in the "proper amount of $99,121.57." According to Liberty's complaint, Husain and the Smith Defendants wrongfully inflated Husain's payoff demand to $330,077.10 by adding the value of the complete Avaya system; improperly claiming the cash value of the system plus interest when the true value of the system was around $1,000 and no interest was allowed by the judgment; and seeking recovery of a system which the San Mateo court had already been found to be in Husain's possession. He alleged Defendants "concealed facts and made misrepresentations of material facts to the escrow officer on the Fort Bragg property" and the updated payoff demand was an "attempt to obtain additional monies through fraud, coercion, bad faith, and/or illegal means."
On May 10, 2021, represented by new counsel for the Mendocino case, Husain moved to strike Liberty's complaint under the anti-SLAPP statute (§ 425.16 et seq.). On June 11, 2021, Husain's motion was heard, but Liberty did not appear and had not submitted opposition to the motion. On June 14, 2021, the court granted Husain's anti-SLAPP motion, noting the absence of any opposition or appearance. The next day Liberty filed a "Motion for Reconsideration of, and to Set Aside, Order Granting Motion to Strike." On June 28, 2021, while Liberty's reconsideration-and-set-aside motion was pending, the Smith Defendants, represented by their own counsel, separately moved to strike Liberty's suit under the anti-SLAPP statute (§ 425.16 et seq.).
On July 16, 2021, the court set aside its ruling granting Husain's motion to strike in order to hear the matter on the merits, along with the Smith Defendants' anti-SLAPP motion. Liberty filed separate oppositions to both motions.
While the motions to dismiss in the Mendocino Case were pending, Liberty returned to the San Mateo court to seek relief. On August 24, 2021, he filed a motion in the San Mateo Case for an "assignment order, for order restraining judgment debtor, and for sanctions." It appears Liberty requested that the 2012 CIT Judgment be assigned to him. The San Mateo court conducted a hearing on the motion on September 20, 2021, four days before the hearing on the SLAPP motions to dismiss in the Mendocino Case. In its September 20, 2021 tentative ruling on the motion, the San Mateo court denied Liberty's motion. The tentative order stated in part: "[T]he papers raise equitable concerns about the propriety of the requested assignment order. The 2012 CIT Judgment in favor of CIT and against the Liberty parties . . . was not just a money judgment, it also ordered that Liberty return the phone system to CIT. As it turns out, however, as the Court explained in the 2013 [Liberty] Judgment . . ., Husain or his son had already sent the phones to India, and thus, Liberty was unable to return them to CIT (i.e., Liberty was unable to comply with the 2012 Judgment that called for him to return the phones to CIT). It appears that, due to this fact, the Court, in 2013, entered a Judgment in favor of Liberty and against Husain for $78,000, which appears to have represented the value of the phone system that Liberty was supposed to return to CIT, but couldn't."
In September 2021, Husain and the Smith Defendants' motions to dismiss were argued. In October 2021, the Mendocino court issued an eight page statement of decision. The court concluded that Husain and the Smith Defendants met their threshold burden of establishing that their efforts to collect the judgment assigned to Husain were protected under the SLAPP statute which placed on Liberty the burden of establishing his claims against each defendant had the requisite minimal merit. The court concluded that Liberty satisfied this burden and denied both motions to strike. In reaching this conclusion, the court observed that Liberty's complaint "allege[d] the violation of one primary right: the right to have title to [Liberty's] real property located [in] Fort Bragg secure from improper judgment liens that may create a cloud on his title." The court rejected Husain and the Smith Defendants' arguments that the litigation privilege shielded their communications from Liberty's lawsuit. The court also determined that Civil Code section 1714.10, subdivision (c), which imposes a prefiling requirement on complaints alleging an attorney conspired with a client, did not preclude Liberty's claims against the Smith Defendants.
Husain and the Smith Defendants separately appealed. They have filed separate appellate briefs, and Liberty has responded to each in kind.We consider their collective contentions on appeal in this opinion.
Liberty requests that we take judicial notice of an order issued in the San Mateo Case on September 7, 2022, which the San Mateo court issued after the appeals in this case were noticed and fully briefed. Defendants have not opposed Liberty's request." 'Reviewing courts generally do not take judicial notice of evidence not presented to the trial court' absent exceptional circumstances." (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.) However, here we shall take judicial notice of the Order as a record of a California court (Evid. Code, § 452, subd. (d).) The order may bear on the trial court's analysis on remand as to whether Liberty's surviving claims have the requisite minimal merit. (See Section B.2.b, infra.)
Discussion
A. The Setting Aside of the June 2021 Order Granting Husain's Anti-SLAPP Motion
As a threshold matter, Husain argues the trial court erred by reconsidering its original order granting his anti-SLAPP motion. Among other arguments, he says the court's initial June 2021 order granting his motion to strike was a final judgment not subject to reconsideration under section 1008 and that Liberty failed to present any new or different facts or circumstances warranting reconsideration. He also contends Liberty did not warrant any relief under section 473, subdivision (b) ("section 473(b)"). We disagree.
1. Additional Background
Liberty's case was initially assigned to Judge Clayton Brennan. On May 10, 2021, the same day Husain filed his anti-SLAPP motion, he filed a peremptory challenge to Judge Brennan which was granted two days later on May 12. That day, the clerk's office also emailed the parties the following: "Our Presiding Judge will be assigning the case to a new judge. Once we know that Judge, we will determine if the hearing needs to be reset or can remain on [June] 10th. We will let you know." On May 14, the case was reassigned to Judge Jeanine Nadel. The reassignment order indicated Husain's motion had been rescheduled from June 10 to June 11.
All dates in this section refer to 2021 unless otherwise stated.
On May 17, Liberty filed a peremptory challenge to Judge Nadel. On May 27, Liberty's counsel emailed Husain's counsel asking whether he had been informed of a new judge or new hearing date for Husain's motion, as Liberty's counsel had not been so informed. Husain's counsel reported that he had not received notice of a new assignment or a new hearing date but would let him know if he heard anything. It appears Judge Nadel granted the challenge the same day Liberty had filed it, but the order was not filed or served on the parties until June 8. The order was not accompanied by a reassignment and made no mention of Husain's pending motion.
On June 10, the case was reassigned to Judge Cindee Mayfield and the parties were served notice of the reassignment by mail. The reassignment order did not address Husain's pending motion. On June 11, newly assigned Judge Mayfield proceeded with the hearing on Husain's special motion to strike. The court had received no opposition to the motion, and Liberty did not appear at the hearing. On June 14, Judge Mayfield issued an order granting Husain's motion. The order noted the lack of an opposition or appearance by Liberty at the hearing, and concluded that Liberty had failed to establish a probability that he would prevail on the claims.
The next day, June 15, Liberty filed his reconsideration-and-set-aside motion and set it for hearing on June 16. The notice of motion indicated he was seeking reconsideration of the court's ruling pursuant to sections 1008 and 473. Liberty explained that the court clerk informed counsel that they would be notified of a new hearing date but no such notice was provided. Specifically, he was never notified that the hearing would remain on the set date or be rescheduled upon reassignment and had been waiting for the newly assigned judge to reset the hearing. In addition, Liberty included as an exhibit to his motion his opposition to Husain's motion which he represented had been ready to file weeks earlier, pending notice of a confirmed hearing date. Husain opposed the reconsideration-and-set-aside motion.
On July 16, the court heard Liberty's motion. While no transcript of the hearing appears in the record, the court's minutes include that the court noted that a motion "under CCP 1008 is not a motion for reconsideration" and that it was "inclined to set aside the order based on the reason stated mistake or excusable neglect." The court also noted that "the peremptory challenge was close to the hearing date, [and] the assignment notice from the [presiding judge] was ambiguous." The minutes further state: "The court on its own motion will set aside the ruling and have a hearing on the merits." The court heard Husain and the Smith Defendants' special motions to strike on September 24 and denied them both.
2. Applicable Law
Section 1008, subdivision (a) authorizes a party to seek reconsideration of an adverse order "based upon new or different facts, circumstances, or law." (§ 1008, subd. (a).) Similarly, section 1008, subdivision (b) provides, "[a] party who originally made an application for an order which was refused in whole or part . . . may make a subsequent application for the same order upon new or different facts, circumstances, or law" set forth in an accompanying affidavit. (§ 1008, subd. (b); Global Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352, 362 ["Section 1008 describes applications for reconsiderations of court orders (§ 1008, subd. (a)) and renewals of previous motions (§ 1008, subd. (b))."].) The moving party must "show diligence with a satisfactory explanation for not presenting the new or different information earlier ...." (Even Zohar Construction &Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833.) We review a trial court's ruling on a motion for reconsideration under the abuse of discretion standard. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)
Section 473(b) provides that a "court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (§ 473, subd. (b).) The party moving for relief usually has the burden of showing that the mistake, inadvertence, surprise, or neglect was excusable. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 (Zamora).) An error qualifies as "excusable" for purposes of the discretionary relief provision in section 473 if a reasonably prudent person placed in the same or similar circumstances might have made the same error. (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007.) The policy of the section 473(b) is to have every litigated case tried upon its merits, and it looks with disfavor upon a party who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.)
We review a trial court's order on a motion under section 473(b) for an abuse of discretion. (Zamora, supra, 28 Cal.4th at p. 257.) Because California law favors resolving cases on their merits, a trial court order denying relief is scrutinized on appeal more carefully than an order permitting trial on the merits. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.) Accordingly, "[d]oubts are resolved in favor of the application for relief from default [citation], and reversal of an order denying relief results." (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235 (Elston), superseded by statute on another basis as described in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64-65.) "Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails." (Elston, at p. 235.)
3. Analysis
Liberty labeled his motion, "Motion for Reconsideration of, and to Set Aside, Order Granting Motion to Strike." The notice of motion and accompanying brief explained that Liberty was seeking relief from the court's order under both sections 1008 and 473. While the court's minutes are somewhat difficult to follow, it is apparent the court had reservations about section 1008 as an appropriate vehicle for the relief Liberty was seeking and provided no relief under that provision. The court expressed its inclination to "set aside the order based on the reason stated mistake or excusable neglect," which tracks the language in section 473(b), not section 1008. (See § 473, subd. (b) ["court may. . . relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect"], emphasis added.) Since the court did not grant Liberty reconsideration under section 1008, we need not address Husain's myriad arguments which challenge the court's set aside order under that provision.
With respect to the court's actual decision to set aside its order under section 473(b), the court did not abuse its discretion. The reassignment of the case to Judge Mayfield occurred and was noticed to the parties via mail on June 10, the day before the last known hearing date for Husain's motion. When the hearing occurred as last scheduled on June 11, it would have been excusable for Liberty to not have known that Judge Mayfield had been assigned the case or that the court was ready to hear the motion that day. Only a day separated the reassignment and the scheduled hearing. Also, the communications from the clerk in conjunction with the initial reassignment could have reasonably set the expectation that any reassignment would include some notice from the court about the hearing date on the pending motion, and no such information was included in the Judge Mayfield reassignment order. It was also reasonable for Liberty to have refrained from filing his opposition to Husain's motion until he knew of the date certain it would be heard. Finally, Liberty acted swiftly to set aside the order, moving for relief the day after the order denying the anti-SLAPP motion was issued and setting the matter for hearing immediately. In a timely manner, Liberty was able to present the grounds for setting aside the order to the court for resolution. Under these circumstances there was no abuse of discretion in setting aside the initial order granting Husain's anti-SLAPP motion.
Husain argues no relief was warranted under section 473(b) because Liberty's failure to oppose the anti-SLAPP motion was not the result of excusable neglect or mistake. Husain cites various section 473(b) cases in which a failure to file timely opposition did not amount to excusable neglect where the attorney was aware of a motion deadline but missed it due to being overburdened with work or due to a clerical error and the attorney lacking knowledge of any extension. But this case presents different circumstances not addressed by those cases. As our analysis above indicates, given the proximity of the judicial reassignment and the hearing date, as well as the clerk's message in conjunction with the initial reassignment, Liberty's neglect in not opposing Husain's motion or appearing at the hearing here was excusable.
Husain also contends that Liberty was not entitled to section 473(b) relief based on his attorney's affidavit of fault "since '[t]he provision of section 473 which mandates relief from a judgment of dismissal or default when the motion is based on an attorney's affidavit of fault does not mandate relief from other judgments.'" Husain explains that the Mendocino court's order granting his anti-SLAPP motion was "neither a default, nor a default judgment, nor a dismissal" and thus not eligible for the statute's mandatory relief provisions. We reject this argument as well. Section 473(b) contains a provision for discretionary relief, which we have discussed (see supra), and one for mandatory relief when supported by counsel's affidavit. (See § 473, subd. (b).) Even though Liberty's counsel submitted an affidavit in support of the motion, the court's minutes note that it was inclined to set aside the order based on "mistake or excusable neglect" and ultimately granted Liberty's set aside request "on its own motion," indicating a sua sponte exercise of discretionary relief. Section 473(b) allows such discretionary relief to be directed at a "judgment, dismissal, order, or other proceeding" (ibid., emphasis added), which readily encompasses the court's order granting Husain's anti-SLAPP motion. Accordingly, the court made no error in setting aside its initial order granting Husain's special motion to strike and deciding the matter on the merits, to which we now turn.
The mandatory portion of section 473(b) states: "Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect." (§ 473, subd. (b), emphasis added.)
B. The Anti-SLAPP Motions
Husain and the Smith Defendants separately argue that the court erred by denying their respective anti-SLAPP motions. We agree in part.
" '[S]ection 425.16 sets out a procedure for striking complaints in harassing lawsuits that are commonly known as SLAPP suits . . ., which are brought to challenge the exercise of constitutionally protected free speech rights.' [Citation.] A cause of action arising from a person's act in furtherance of the 'right of petition or free speech under the [federal or state] 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 claim will prevail. (§ 425.16, subd. (b)(1).) 'The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity." (Sweetwater Union High School Dist. v. Gilbane Building. Co. (2019) 6 Cal.5th 931, 940.)
In ruling on a defendant's anti-SLAPP motion, the trial court engages in a two-prong analysis. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) First, the court determines "whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity." (Ibid.) Second, if the court finds this showing has been made, it must dismiss the cause of action unless the plaintiff meets its burden to demonstrate a probability of prevailing on the claim. (Ibid.)" '[C]laims with the requisite minimal merit may proceed.'" (Baral v. Schnitt (2016) 1 Cal.5th 376, 385 (Baral).) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute." (Navellier, at p. 89.)
"Section 425.16 is 'construed broadly, to protect the right of litigants to" 'the utmost freedom of access to the courts without [the] fear of being harassed subsequently by derivative tort actions.'" '" (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35 (Rohde).) We review a ruling on an anti-SLAPP motion de novo and engage in the same two-step process as the trial court. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.)
1. Protected Activity
In assessing whether the challenged cause of action constitutes protected activity (the first prong), a court must ask "two subsidiary questions: (1) What conduct does the challenged cause of action 'arise[ ] from'; and (2) is that conduct 'protected activity' under the anti-SLAPP [law]?" (Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 698 (Mission Beverage).) In answering the first subsidiary question, a cause of action "arises from" protected activity when it is "based on" protected activity - that is, when the protected activity is the"' "principal thrust or gravamen" '" or" 'core injury-producing conduct'" warranting relief. (Ibid.)
In evaluating the second subsidiary question, the anti-SLAPP law defines four categories of protected activity: (1) "any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made" 'in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,'" (3) any written or oral statement or writing made" 'in a place open to the public or a public forum in connection with an issue of public interest,'" or (4)" 'any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.' (§ 425.16, subd. (e)(1)-(4).) The party bringing the anti-SLAPP motion to strike must make a prima facie showing that the allegations that form the basis of the plaintiff's claims arise from conduct that falls under one of these categories." (Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 760.)
Here, the trial court found that Husain and the Smith Defendants met their threshold burden of establishing their challenged conduct was protected activity under section 425.16, subdivisions (e)(1) and (e)(2). Defendants assert this finding was correct, but Liberty argues the court erred in its finding.
We need not consider Liberty's claim of error. "It is a general rule a respondent who has not appealed from the judgment may not urge error on appeal." (Hutchinson v. City of Sacramento (1993) 17 Cal.App.4th 791, 798 (Hutchinson).)" 'To obtain affirmative relief by way of appeal, respondents must themselves file a notice of appeal and become cross-appellants.'" (Gutierrez v. Chopard USA Ltd. (2022) 82 Cal.App.5th 383, 393-394.) "A limited exception to this rule is provided by Code of Civil Procedure section 906, which states in pertinent part: 'The respondent . . . may, without appealing from [the] judgment, request the reviewing court to and it may review any of the foregoing [described orders or rulings] for the purpose of determining whether or not the appellant was prejudiced by the error or errors upon which he relies for reversal or modification of the judgment from which the appeal is taken.' 'The purpose of the statutory exception is to allow a respondent to assert a legal theory which may result in affirmance of the judgment.'" (Hutchinson, at p. 798.) Here, we have located no cross-appeal from the trial court's order filed by Liberty in the record. Because Liberty did not file such a cross-appeal, he has forfeited his challenge to this aspect of the court's order.
Even if we had to consider Liberty's claim of error under the exception, we would still conclude the court made no error in determining Defendants made a threshold showing that their challenged cause of action arose from protected activity. In reaching this conclusion, we consider the "two subsidiary questions" set forth above: "(1) What conduct does the challenged cause of action 'arise[ ] from'; and (2) is that conduct 'protected activity' under the anti-SLAPP [law]?" (Mission Beverage, supra, 15 Cal.App.5th at p. 698.)
First, the factual basis for each of Liberty's seven causes of action claims arose from Husain and the Smith Defendants' presentation of a payoff demand of $330,077.10 to the escrow agent for Liberty's Fort Bragg house to satisfy the 2012 CIT Judgment which had been assigned to Husain. This payoff demand allegedly caused Liberty to suffer damages because it prevented escrow from closing on the house and rendered Liberty unable to sell the property.
Second, this conduct constitutes protected activity within the meaning of section 425.16. Protected activity includes "any written or oral statement or writing made before a legislative, executive, or judicial proceeding" and "any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body." (§ 425.16, subd. (e)(1)-(2).) California courts have held that under section 425.16, the protection of petitioning activities applies not only to the filing of lawsuits and activities during the litigation but extends to postjudgment activities as well. Postjudgment activities that have been deemed protected include those relating to the enforcement of a judgment. (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056, 1061-1062 (Rusheen).)
Courts interpreting section 425.16 have further found protected activities under section 425.16 to encompass "communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.] This includes qualifying acts committed by attorneys in representing clients in litigation." (Rusheen, supra, 37 Cal.4th at p. 1056; see also Finton Construction, Inc. v. Bidna &Keys, APLC (2015) 238 Cal.App.4th 200, 210 (Finton Construction) [" 'Under the plain language of section 425.16, subdivisions (e)(1) and (2), as well as the case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.' "].)
For instance, recording an abstract of judgment has been found to be a protected activity since it represents a continuation of the litigation and a preparatory step to executing on the judgment. (See O'Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134-135 (O'Keefe).) Likewise, the recordation and presentation of a judgment lien has been found to be protected activity. (O'Neil-Rosales v. Citibank (South Dakota) N.A. (2017) 11 Cal.App.5th. Supp. 1, 6 ["defendants' acts of obtaining an abstract of judgment and recording it as a real property lien fell within the categories of section 425.16, subdivision (e)"].) In addition, while not a postjudgment action, the service of a lis pendens has been deemed to "fall[] squarely" within the definition of protective activity under section 425.16, subdivision (e). (See Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1050; La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 471 (La Jolla Group II) ["Unquestionably, the recording of the lis pendens constituted a written statement in connection with issues under consideration in a judicial proceeding-that is, the underlying quiet title action."].)
"Lis pendens" is a Latin term meaning "[a] pending lawsuit." (Black's Law Dict. (8th ed. 2004) p. 950.) "Lis pendens" and "notice of lis pendens" can be used to describe "[a] notice, recorded in the chain of title to real property, required or permitted in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit are subject to its outcome." (Ibid.)
It is undisputed that Defendants' payoff demand letter to Liberty's escrow agent arose from Husain's efforts to enforce a judgment lien against Liberty. It is also undisputed that the acts undertaken by the Smith Defendants alleged in Liberty's complaint arose out of their representation of Husain in these judgment enforcement efforts. Accordingly, based on the above authorities, the alleged wrongful actions undertaken by Husain and the Smith Defendants - presenting a payoff demand letter to secure a judgment - qualifies as protected activity governed by the anti-SLAPP statute.
Liberty contends that "[p]resenting a fraudulent escrow demand is not 'arising from' protected activity" and that Defendants failed to make a threshold showing that Liberty's complaint arose from "protected activity as defined under Section 425.16(e)(4)." We disagree. It is undisputed that this case arises out of a single act of presenting an escrow demand in an effort to satisfy a judgment. As the cases cited above show, it is well established that postjudgment activities to enforce a judgment such as presentation of a judgment lien are protected under section 425.15, subdivision (e)(2). Defendants' communication to the escrow agent was an extension of such an enforcement effort. Further, Liberty's reference to subdivision (e)(4), which protects "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)), is misplaced, as Defendants' conduct was found by the trial court to be protected under (e)(1) and (e)(2) and claimed by Defendants to be protected under (e)(2), not (e)(4). Subdivision (e)(2), unlike (e)(4), "does not require any showing that the litigated matter concerns a matter of public interest." (Rohde, supra, 154 Cal.App.4th at p. 35.)
Liberty contends Defendants' conduct was "incidental to [their] exercise of free speech and therefore not protected." He states that "[c]laims that are merely incidental or collateral to a cause of action are not subject to section 425.16." Again, we are not persuaded. Liberty acknowledges his complaint "is based upon [an] improper escrow demand, giving rise to not less than seven causes of action with differing elements and damages." Defendants' presentation of the escrow demand constituted activity falling squarely within their protected rights and free speech and was not at all incidental to their free exercise of speech.
Liberty further contends Defendants' acts are not protected because they do not arise from acts in furtherance of their right to petition or free speech. He asserts the case "deals with the presentation of a fraudulent escrow demand to a non-governmental escrow company, unsupported by judgment" and that Defendants do not have "a right of 'free speech' to make false claims." According to Liberty, the escrow demand "may constitute grand theft" under Penal Code section 487 or theft by false pretenses under Penal Code section 532. We also reject these contentions, which are premised on the alleged illegality of Defendants' conduct.
" 'Unlawful or criminal activities do not qualify as protected speech or petition activities under the anti-SLAPP statute. [Citations.] But when the defendant's assertedly protected activity may or may not be unlawful, the defendant may invoke the anti-SLAPP statute unless the activity is unlawful as a matter of law. [Citation.] An activity may be deemed unlawful as a matter of law when the defendant does not dispute that the activity was unlawful, or uncontroverted evidence conclusively shows the activity was unlawful.'" (Vivian v. Labrucherie (2013) 214 Cal.App.4th 267, 274-275.) In this case, there is no conclusive evidence that Defendants' escrow payoff demand was unlawful, nor have Defendants conceded that the demand was false or that they did anything unlawful in demanding such payment. Hence, there is no merit to Liberty's attempt to avoid application of section 425.16 based on the alleged illegality of their conduct.
In any event, the validity of Defendants' escrow demand is irrelevant to the issue of whether the demand was protected activity. "At the first prong, courts consider whether a defendant has made a prima facie showing that activity underlying a plaintiff's causes of action is statutorily protected, 'not whether it has shown its acts are ultimately lawful.' [Citation.] Any claimed illegitimacy of the defendant's acts is an issue that must be raised and supported by the plaintiff in discharging its burden on prong two. [Citation.] 'To conclude otherwise would effectively shift to the defendant a [merits] burden statutorily assigned to the plaintiff.'" (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 425-426; also Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1089 ["under the statutory scheme, a court must generally presume the validity of the claimed constitutional right in the first step of the anti-SLAPP analysis, and then permit the parties to address the issue in the second step of the analysis, if necessary"]).) For this reason, too, Liberty's claim of illegal conduct is premature and irrelevant and does not preclude us from deeming Defendants' actions to be protected activity in our first prong analysis.
2. Possibility of Prevailing
Because Husain and the Smith Defendants satisfied their burden on the first prong of the anti-SLAPP test, the burden then shifted to Liberty to show he could prevail on the complaint.
"[I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have' "stated and substantiated a legally sufficient claim."' [Citation.] 'Put another way, 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." '" (Navellier, supra, 29 Cal.4th at p. 89.)" 'In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.' [Citation.] Accordingly, 'the motion to strike should be granted if the defendant "defeats the plaintiff's showing as a matter of law, such as by establishing a defense or the absence of a necessary element." '" (La Jolla Group II, supra, 211 Cal.App.4th at pp. 470-471.)
Defendants argue that the trial court erred in finding that Liberty had met this burden of showing that his claims against them had the requisite minimal merit. They contend Liberty could not overcome the litigation privilege, and that he made no showing his claims had factual or legal merit.
a. Litigation Privilege
We first address whether the litigation privilege set forth in Section 47(b) shielded any of Husain or the Smith Defendants' actions from any or all of Liberty's claims. The privilege is relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing. (See, e.g., Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1263, fn. 7 [if alleged conduct is subject to litigation privilege, plaintiff cannot establish probability of prevailing to defeat an anti-SLAPP motion].)
The litigation privilege shields, among other things, any "publication or broadcast" made "[i]n any . . . judicial proceeding." (Civ. Code, § 47, subd. (b).) "The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." (Olszewski v. Scripps Health (2003) 30 Cal.4th. 798, 830 (Olszewski).)
The main purpose of the litigation privilege is to afford litigants and witnesses the "utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions." (Silberg v. Anderson (1990) 50 Cal.3d 205, 213 (Silberg); see Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 288-289 (Weeden) [privilege protects court access by shielding defendants from derivative tort liability].) Where it applies, the privilege is absolute, providing a defense to all torts except malicious prosecution and applying "to all publications, irrespective of their maliciousness." (Silberg, at pp. 212, 215-216.)" 'Any doubt about whether the privilege applies is resolved in favor of applying it.'" (Finton Construction, supra, 238 Cal.App.4th at p. 212.)
Courts have applied the litigation privilege to" 'any publication . . . that is required [citation] or permitted [citation] by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is invoked.'" (Olszewski, supra, 30 Cal.4th at pp. 830-831.) "The privilege 'is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.'" (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) The litigation privilege has applied to" 'the recordation of a notice of lis pendens' [citation], 'the publication of an assessment lien' [citation], and 'the filing of a claim of mechanic's lien in conjunction with a judicial proceeding to enforce it.'" (Olszewski, supra, 30 Cal.4th at p. 830.)
The following cases are particularly instructive to our analysis:
In O'Keefe, supra, 84 Cal.App.4th 130, the plaintiff O'Keefe sued for abuse of process and slander of title after the defendants initiated collection efforts against him on a judgment from an earlier litigation that was pending appeal. (Id. at p. 132.) One of the defendants (an attorney in the earlier litigation) levied on a bank account belonging to O'Keefe while the other defendant (also an attorney in the earlier litigation) filed an allegedly fraudulent abstract of judgment with the county recorder's office. (Ibid.) The defendants demurred to O'Keefe's lawsuit, arguing that their preliminary collection efforts were absolutely privileged under Section 47(b). (Ibid.) The Court of Appeal agreed, noting the expansion of the litigation privilege "to bar virtually all tort actions based on any 'publication or broadcast' made in the course of a judicial proceeding." (Id. at pp. 133-134.) The court concluded defendants' "enforcement efforts [were] clearly privileged under [section 47(b)]." (Id. at p. 134.) The court explained: "The actions giving rise to [O'Keefe's] suit-levying on a bank account and filing an abstract of judgment-were merely defendants' efforts to secure payment of the attorney fees judgment and an extension of that judicial process." (Ibid.) That the collection efforts involved conduct outside of the courtroom or occurred after trial was immaterial, since they "were logically and legally related to the realization of a litigation objective-that is, collection of a judgment." (Id. at pp. 134-135.)
In Brown v. Kennard (2001) 94 Cal.App.4th 40 (Brown), Brown sued Kennard for abuse of process after Kennard enforced a purported money judgment by levying on Brown's deposit account of certain categorically exempt funds (i.e., social security retirement benefits) pursuant to a writ of execution. (Id. at pp. 42-43.) Kennard demurred, arguing that Brown could not state a cause of action because issuance of the writ of execution was absolutely privileged under Section 47(b). (Id. at p. 44.) The Court of Appeal noted that judgment enforcement efforts are generally considered to be within the litigation privilege because they are an extension of a judicial proceeding and related to a litigation objective. (Id. at p. 49.) Nevertheless, Brown contended that his abuse of process claim arose from the wrongful levy, which was neither a statement nor a communication within the litigation privilege. (Id. at p. 50.) In responding to Brown's contention that the abuse of process action arose from the wrongful levy itself, the court stated: "The act of applying for a writ is privileged. The privilege extends to torts arising from the privileged statement or publication. As such, not only does the privilege protect the application for the writ of execution, it also extends to the act of carrying out the directive of the writ." (Id. at p. 50, fns. omitted.) The court concluded the litigation privilege barred Brown's abuse of process cause of action. (Id. at p. 51.) The court further noted that "the policy underlying the litigation privilege of encouraging free access to the courts by discouraging derivative litigation simply outweigh[ed] the policy of providing Brown with a tort remedy for an allegedly wrongful enforcement of a judgment." (Id. at p. 50.)
More recently in Weeden, supra, 70 Cal.App.5th 269, the plaintiffs, the Weedens, sued Hoffman after Hoffman sent the Weedens a letter threatening a forced sale of real property the Weedens had purchased from Hoffman's exwife. (Id. at pp. 275-276, 280.) Hoffman sent the letter based on a judgment lien created when Hoffman recorded an abstract of judgment that he obtained in divorce proceedings with his ex-wife. (Id. at p. 280.) The Weedens' complaint against Hoffman asserted three causes of action: quiet title, slander of title, and cancellation of an instrument. (Id. at pp. 275, 280.) In response, Hoffman filed an anti-SLAPP motion to dismiss the action, arguing that the conduct underlying the Weedens' claims was protected activity under anti-SLAPP law and that the Weedens were unable to demonstrate a probability of prevailing on their claims. (Id. at pp. 276, 280.) The trial court agreed with Hoffman that the conduct underlying the Weedens' claims (his recording of a judgment) constituted protected activity. (Id. at pp. 276, 280.) The trial court also agreed that the Weedens could not demonstrate a probability of prevailing on their claims because the litigation privilege provided Hoffman with absolute immunity from liability. (Id. at pp. 276, 280-281.)
The Court of Appeal agreed that the Weedens' claims arose from protected activity but concluded that the litigation privilege provided a defense to only one of the three pleaded causes of action, their slander of title claim, which sought to hold Hoffman liable in tort for damages. (Weeden, supra, 70 Cal.App.5th at pp. 286-287, 293.) The court noted that "the litigation privilege does not provide a defense to a cause of action that, by its nature, does not seek to impose tort liability for damages on a defendant based on his or her litigation related publications." (Id. at p. 289.) It explained that the Weedens' cause of action to quiet title was not a tort claim and did not seek to hold a defendant liable for damages but was instead generally equitable in nature like a declaratory relief action. (Id. at pp. 291292.) Therefore, the litigation privilege did not bar the Weedens' cause of action to quiet title. (Id. at p. 292.) The court applied the same analysis to the Weedens' cancellation of an instrument cause of action and concluded the litigation privilege did not preclude that claim either. (Id. at pp. 292-293.)
Under these authorities, the litigation privilege operates to preclude liability for tort damages based on a publication or broadcast made in any judicial proceeding. (See, e.g., Weeden, supra, 70 Cal.App.5th at p. 289.) Here, the conduct giving rise to Liberty's causes of action against Defendants was their payoff demand to Liberty's escrow agent to satisfy the 2012 CIT Judgment assigned to Husain in the San Mateo Case. Any effort by Defendants in filing an abstract of judgment and then later seeking to collect on that judgment were designed to achieve the objective of that case. Since these efforts were logically and legally related to the realization of a litigation objective - that is, collection of a judgment - the litigation privilege applied to bar any tort actions based on such communications.
Of Liberty's seven causes of action asserted against Defendants, his causes of action for fraud, cloud on title, slander of title, and negligence sought to hold Defendants liable in tort. With respect to each of these causes of action, Liberty's complaint asserted he had suffered damages as a result of Defendants' payoff demand letter and sought to hold Defendants liable for damages. For these causes of action, Liberty alleged that Defendants' false representation to the escrow officer handling the sale of the Fort Bragg property induced the escrow officer to not close escrow and caused damages to Liberty by preventing the sale of the house. Additionally, for his cloud on title and slander of title claims, he alleged Defendants' false escrow demand caused him financial loss and continuing damages. For his negligence claim, he alleged Defendants' breach of duty has resulted in damages in excess of the jurisdictional minimum.
Most of these causes of action have been recognized as torts subject to a litigation privilege defense. (See, e.g., Brown, supra, 94 Cal.App.4th at p. 45 ["California courts have extended the litigation privilege beyond the defamation context to preclude numerous other tort actions. For example, abuse of process, fraud, intentional inducement of breach of contract, intentional infliction of emotional distress, intentional interference with prospective economic advantage, invasion of privacy, negligence, and negligent misrepresentation are all subject to the privilege. Malicious prosecution is the only tort not subject to the litigation privilege."]; La Jolla Group II, supra, 211 Cal.App.4th at p. 477 [litigation privilege applied to recorded lis pendens and shielded defendants from plaintiffs' complaint for slander of title as a matter of law]; O'Keefe, supra, 84 Cal.App.4th at pp. 134135 [demurrer to complaint asserting slander of title claim and another tort properly sustained under litigation privilege]; Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1493 [noting litigation privilege provided defense to negligence cause of action].)
Because the litigation privilege provided Husain and the Smith Defendants a complete defense to these tort causes of action, we conclude the trial court erred in not striking these claims from the complaint and granting Defendants' anti-SLAPP motion with respect to these claims. Since the litigation privilege operates as a complete bar to all four causes of action, we have no need to analyze any of these claims further.
We reach a different conclusion regarding Liberty's remaining three cause of action for quiet title, injunctive relief, and declaratory relief. Under Weeden, non-tort damage remedies remain available to litigants even where a claim for tort damages is precluded by the litigation privilege. (Weeden, supra, 70 Cal.App.5th at p. 290.) Since these causes of action were not tort claims through which Liberty aimed to hold Defendants liable for damages, they are not precluded by the litigation privilege.
Under his quiet title cause of action, Liberty alleged he was seeking a "determination of [his] title against all adverse claims against the Fort Bragg property." In his cause of action for injunctive relief, he alleged he was seeking an injunction to prevent Defendants from claiming and/or being paid the wrongful amount through their false escrow demand on the Fort Bragg property. In his declaratory relief claim, he noted the existence of an actual controversy relating the legal rights and duties of the parties and requested that "these rights and duties be adjudged by the court" from which he requested a declaratory judgment related to the controversy. Such claims do not seek to impose tort liability for damages on a defendant based on his or her litigation related communications. (See Weeden, supra, 70 Cal.App.5th at pp. 289, 291 [" '[A]ctions to quiet title, like true declaratory relief actions, are generally equitable in nature.' "].) Accordingly, we conclude the litigation privilege does not bar Liberty's causes of action for quiet title, injunctive relief, and declaratory relief. Because the litigation privilege did not bar these claims, Liberty was required to show a probability of prevailing on the merits of these claims.
The trial court relied on and found instructive Supershuttle International, Inc. v. Labor and Workforce Development Agency (2019) 40 Cal.App.5th 1058 (Supershuttle), to support its conclusion that the litigation privilege did not shield Defendants' conduct, and Liberty contends such reliance was proper. We disagree. In that case, Supershuttle International Inc. filed a declaratory relief action seeking to stop the Labor Commissioner and other related entities (the "Labor defendants") from considering wage claims filed by their van drivers because the Sacramento County Superior Court previously found them to be independent contractors, not employees. (Id. at pp. 1060-1061, 1063.) The Labor defendants filed an anti-SLAPP motion, which the trial court denied. (Id. at p. 1061.) On appeal, the court affirmed the order, concluding the Labor defendants' conduct did not constitute protected activity. (Id. at pp. 1066-1070.) According to the court, the conduct at issue was the Labor defendants' intention to deny the collateral estoppel effect to a Sacramento court judgment, not any writing or statements communicating that decision. (Id. at p. 1066.) The court further explained that acts of governance mandated by law were not exercises of free speech or petition subject to SLAPP suits. (Ibid.) Accordingly, the Labor defendants' intended act of refusing to accord collateral estoppel effect to the court judgment was not conduct that could be defeated by an anti-SLAPP motion. (Ibid.) Further, because the Supershuttle court concluded that the Labor defendants did not establish facts satisfying the first prong of the anti-SLAPP analysis, it expressly refrained from discussing the second prong. (Ibid.)
Here, in contrast, Defendants' payoff demand letter to collect on a judgment was protected petitioning and speech activity, as the trial court found at the outset of its decision. Supershuttle, which the trial court recognized was "factually distinguishable from this case," does not undermine the court's protected activity finding. Moreover, Supershuttle did not discuss the possibility of Supershuttle prevailing on its claims and the litigation privilege was never raised or discussed. (See Supershuttle, supra, 40 Cal.App.5th at pp. 1066-1069.) It has no bearing on whether the privilege applies here.
Liberty advances additional arguments as to why the litigation privilege does not apply. None compels a different result. They are unpersuasive, inapplicable, or unintelligible and thus waived. (See In re Marriage of Falcone &Fyke (2008) 164 Cal.App.4th 814, 830 ["The absence of cogent legal argument . . . allows this court to treat the contentions as waived"].) For instance, observing that the litigation privilege applies only to communicative acts and not tortious courses of conduct, Liberty suggests that harm alleged in this case was conduct not a communication. This disregards his own statements that he "is suing on [the] false escrow demand," a communication. Liberty also discusses the common-interest privilege under Civil Code section 47, subdivision (c) and cites authorities construing that privilege, but he draws no connection to the litigation privilege under Section 47(b) which Defendants rely upon for their defense and which is at issue in this appeal. He additionally notes that courts have recognized "exceptions to the litigation privilege" but provides no cogent analysis as to why any such exception applies.
In sum, we conclude the litigation privilege shielded Defendants' communications from the tort claims for damages Liberty asserted against them: fraud, cloud on title, slander of title, and negligence. The privilege did not bar Liberty's causes of action for quiet title, injunctive relief, and declaratory relief, and Liberty was required to show a probability of prevailing on the merits as to these claims.
b. Minimal Merit of Remaining Claims
For the three remaining non-tort claims, Liberty must show a probability of prevailing on the merits of each claim to prevent the claim from being stricken under the anti-SLAPP statute. As we have explained, for each remaining claim he must make a prima facie showing of facts which, if proved at trial, would support a judgment in his favor.
The trial court conducted this second prong analysis, applying a primary rights analysis to determine Liberty's complaint as a whole had minimal merit. As the court explained, the one primary right alleged to have been violated was "the right to have title to Plaintiff's real property [in] . . . Fort Bragg secure from improper judgment liens that may create a cloud on title." In the court's view, "although multiple legal theories and remedies [were] plead, the Complaint [was] based on a single cause of action against Husain and the Smith Defendants." Based on this analysis, the court concluded that Liberty's cause of action was "essentially non-tortious" and the Complaint in its entirety had minimal merit.
Husain and the Smith Defendants argue that the trial court erred in evaluating all of Liberty's seven causes of action under a primary rights framework, rather than engaging in an individualized analysis of each cause of action. We agree that such an approach was problematic because in concluding Liberty's complaint was "essentially non-tortious," the court failed to consider the torts alleged and which it had already recognized as well as the multiple allegations seeking money damages. In addition, our Supreme Court has expressed reservations about its application in the anti-SLAPP context. (See Baral, supra, 1 Cal.5th at pp. 394-395 ["[T]he primary right theory is notoriously uncertain in application. 'Despite the flat acceptance of the . . . theory . . . by California decisions, the meaning of "cause of action" remains elusive and subject to frequent dispute and misconception.' [Citation.] Dispute and misconception over the scope of the anti-SLAPP statute are to be avoided. We have observed that the 'primary right theory has a fairly narrow field of application. It is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits.' [Citation.] The theory is ill-suited to the anti-SLAPP context, where the Legislature authorized a special motion to strike only claims that arise from protected speech or petitioning activity."].)
Because the trial court relied improperly on a primary rights analysis to preserve the entirety of Liberty's complaint, it did not examine whether Liberty met his burden of establishing that each remaining claim had the minimal merit required under the second step of the anti-SLAPP analysis. (See § 425.16, subd. (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 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," emphasis added]; Navellier, supra, 29 Cal.4th at p. 89.) We therefore remand this matter to the trial court to conduct that individualized analysis for the three surviving causes of action: count 4 (quiet title), count 5 (injunctive relief), count 7 (declaratory relief). (See Collier v. Harris (2015) 240 Cal.App.4th 41, 57.)
Thus, on remand, for these remaining claims, the burden shifts to Liberty "to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing." (Baral, supra, 1 Cal.5th at p. 396.) In doing so, the court may consider the order issued in the San Mateo Case on September 7, 2022, which we have judicially noticed and which appears to fully address Liberty's equitable claims.
At oral argument, counsel alerted the court that the order is subject to a pending appeal.
C. Civil Code section 1714.10
The trial court found that Liberty's case against the Smith Defendants was not barred by Civil Code section 1714.10, which prohibits the filing of certain claims alleging conspiracy between an attorney and a client unless the plaintiff first establishes a reasonable probability of prevailing and obtains a prefiling order. (Civil Code, § 1714.10, subd. (a).) However, the prefiling order requirement does not apply to a cause of action against an attorney for civil conspiracy with a client when "(1) the attorney has an independent legal duty to the plaintiff, or (2) the attorney's acts go beyond the performance of a professional duty to serve the client and involve a conspiracy to violate a legal duty in furtherance of the attorney's financial gain." (Id. § 1714.10, subd. (c).) The court concluded that Liberty's complaint was not subject to the prefiling requirement based on the duty exception in section 1714.10, subdivision (c)(1).
While the Smith Defendants reference section 1714.10 in four pages of their 77-page opening brief and remark that Liberty's complaint violated the statute by not complying with the prefiling requirement, they include no clear contention under a separate heading in their opening brief asserting the trial court's ruling on this issue was erroneous. Nor do they include any substantive legal argument challenging the application of either of the exceptions in section 1714.10, subdivision (c). Their reply brief does not cite section 1714.10 at all. To the extent the Smith Defendants intended to assert any claim of error with respect to the court's section 1714.10 ruling (which appears unlikely), their arguments have been forfeited. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [appellate brief must "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument"]; Tukes v. Richard (2022) 81 Cal.App.5th 1, 12, fn. 5 ["A contention not appropriately raised in the opening brief under a separate argument heading may be deemed forfeited."].)
Disposition
The order denying Defendants' anti-SLAPP motions to strike is reversed. On remand, for the reasons discussed above, the superior court is directed to enter a new order granting Defendants' anti-SLAPP motions to strike as to count 1 (fraud), count 2 (cloud on title), count 3 (slander of title), and count 7 (negligence) of Liberty's complaint, which are tort claims barred by the litigation privilege. For the surviving causes of action (count 4 (quiet title), count 5 (injunctive relief), and count 7 (declaratory relief)), the court is directed to proceed to the second step of the anti-SLAPP analysis to determine whether Liberty met his burden of establishing that his claims have the requisite minimal merit. Each party shall bear their own costs on appeal.
WE CONCUR: Tucher, P.J., Fujisaki, J.