Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M87797
ELIA, J.In this appeal, both parties challenge rulings arising from the dissolution of their medical corporation, which we have considered in a companion appeal, H032731. Steven Mangar seeks review of an order granting the motion of Brad Carpentier under the anti-SLAPP statute, Code of Civil Procedure section 425.16, while Carpentier contests an order quashing a writ of execution and setting aside a sheriff's execution sale of Mangar's shares in the parties' corporate property. We will dismiss Carpentier's appeal and affirm the order from which Mangar appeals.
The same facts underlie both this case and a related dispute in Carpentier v. Mangar, H032731, and the two cases have been considered together on appeal. We relate the entire procedural history to lend perspective to the overlapping issues.
In September 2001 the parties formed a medical corporation to provide medical care to their patients, operating under the name Pacific Pain Care Institute. Originally, they agreed to share revenue equally. Toward the end of 2002, however, a problem arose concerning Mangar's insufficient documentation of his patients' care, which impeded billing and revenue collection as well as effective follow-up care. In October 2003, the parties adopted a system in which each would receive the revenue generated from the care of his own patients, and each would contribute half of the corporate expenses of the practice. Mangar continued to fall behind, however, and in March 2004 Carpentier warned him that he might be forced to end the relationship. Kenneth Chappell, the corporation's accountant, was asked to perform an accounting to assist in resolving the parties' conflict.
In September 2004, Mangar promised to repay Carpentier $55,000 to avoid dissolution of the corporation, a promise on which Carpentier relied in continuing the relationship. Mangar did not pay the promised amount, however. During his review Kenneth Chappell found $70,000 that could not be accounted for without certain documents that Mangar had failed to produce. Another $7,823.63 in Medicare checks had been deposited into Mangar's personal account. Between September and November of 2004 the situation continued to deteriorate and Carpentier moved out of the practice. Mangar had not only failed to generate sufficient income to pay his share of expenses, but had taken insurance payments intended for Carpentier and deposited the checks in his own personal bank account.
On May 13, 2005, Carpentier filed a Petition for Court Supervision of the Voluntary Winding Up of the Corporation. Carpentier alleged that in spite of their resolution in October 2003, Mangar had been "taking more than his share of cash" from the corporation— in particular, money received for services provided by Carpentier, while failing to contribute equally to the corporate expenses. He also had taken checks made payable to Carpentier or to the practice itself, and deposited them into his own personal account. Carpentier sought supervision to protect his interests, an injunction to safeguard assets and prevent Mangar from misappropriating funds and other property, and an order directing Mangar to assume liability for all "losses, injuries and damages occasioned by his wrongful conduct, breach of duty or legal responsibility."
Mangar consented to a decree winding up the corporation. He disputed Carpentier's factual allegations, however. He alleged that while he had promised to reimburse Carpentier for the amounts he owed, the condition was that Carpentier stop making "disparaging and incendiary remarks" about him to third parties. Carpentier had continued making these remarks, however. Carpentier also allegedly "stole" patients from Mangar, by taking referrals intended for Mangar or the corporation, especially the lucrative ones. According to Mangar, after Carpentier left the practice in November 2004, Carpentier took more than his agreed share of the corporate equipment, failed to contribute his share of the corporate expenses, failed to make the payments on bank loans to the corporation, and diverted the corporation's mail to himself. Finally, Mangar opposed the request for a preliminary injunction and requested a stay on any damages award until Chappell had completed his accounting. Mangar followed his response with a counter-petition in which he requested an injunction against diverting mail and other communication services, making defamatory remarks about him, seizing referrals intended for Mangar or the corporation, and sending public officials to retrieve corporate assets. He also requested damages and punitive damages occasioned by Carpentier's "wrongful conduct and breach of duty or legal responsibility."
Protracted litigation followed these pleadings, but the matter was finally tried on November 13 and 14, 2006 (Case No. M74394). Mangar dismissed his counter-petition. In opposition to the petition, he asserted that neither party had the right to damages because neither had "complied with the corporation's code [sic] for a derivative lawsuit against the corporation, and neither party ha[d] a right to damages against the other, personally." Both parties requested a statement of decision.
On January 25, 2007, the court issued its "Minute Order: ORDER AFTER SUBMISSION," in which it set forth its findings of fact and ordered dissolution of the corporation. The court found support for the claim that Mangar had "underperformed primarily by not keeping proper and timely records of the patients he [had] treated. Even after repeated promises to improve his practice, the evidence established that the decline continued, even to the point of having his hospital privileges terminated at the Community Hospital of the Monterey Peninsula." The court credited the accountant's conclusions regarding Mangar's lack of cooperation and retention of corporate revenue. It then ordered "dissolution of the corporation in accordance with the procedural requirements of the [C]orporations [C]ode."
The wording of the court's January 25, 2007 order in M74394 provoked a dispute that persists on appeal. Although the evidence had established Mangar's unfulfilled promise to pay $55,000 to Carpentier, the court stated: "Steven Mangar is ordered to reimburse the corporation as follows:
$55,000.00
Promised payment
$70,000.00
Unaccounted funds
$7,823.63
Medicare checks
Total
$132,823.63"
(Italics added)
On February 6, 2007, Carpentier obtained a writ of execution for $132,823.63 plus interest and fees. On the Judicial Council form he checked the box identifying himself as a judgment creditor. The next day he applied to the court for an ex parte application for a turnover order for Mangar’s shares of the Las Ventanas Surgery Center, Inc. (Surgery Center), which both parties owned. Carpentier stated that the January 25 order was effectively a money judgment which could be paid from Mangar’s shares of the Surgery Center, since Mangar had not paid any of the $132,823.63 debt. Mangar opposed the request and urged the court to quash the writ of execution sua sponte, arguing that it was "fatally flawed." In particular Mangar complained that (a) no judgment had yet been entered in the matter; and (b) even if there had been a judgment, the corporation, not Carpentier, was the judgment creditor.
The court denied the turnover order but did not quash the writ of execution. On March 21, 2007, however, Carpentier again applied for a turnover order. This time Carpentier pointed out that the Legislature had defined "judgment" to include any "order or decree entered in a court of this state," and that " 'Judgment debtor' means the person against whom a judgment is rendered." (Code Civ. Proc., § 680.230, 680.250.) It was not necessary for the order to be a final appealable judgment. Thus, he argued, as the person who obtained the requested relief, "or as one acting on behalf of the dissolved corporation and winding it up," he was entitled to pursue collection of the judgment. Carpentier noted that transferring 1,300 shares of the Surgery Center would yield $7,800 toward the total amount due under the January 25 order.
Mangar again opposed the application and renewed his request that the court quash the writ on its own motion. Mangar argued that the writ of execution had been based on "glaring misrepresentations," since it listed him as a judgment debtor when there had been no "money judgment" entered and it listed Carpentier rather than the corporation as a judgment creditor. Without comment the court denied Carpentier's second application on March 29, 2007.
In early April 2007 Carpentier obtained an Order to Appear for Examination, requiring Mangar as "judgment debtor" to "furnish information to aid in enforcement of [the] money judgment." On July 27, 2007, Carpentier's attorney requested a levy on Mangar's 1,300 shares of the Surgery Center. He did not mention the denial of the turnover order, but attached the writ of execution. The sheriff issued the notice of levy.
In September 2007 Carpentier moved for an order and decree declaring the parties' corporation to be "duly wound up and dissolved," within the meaning of Corporations Code section 1808. In the motion Carpentier's attorney mentioned that the Surgery Center shares were "scheduled to be sold" by the sheriff in an effort to collect part of the corporation's outstanding debts. That sale took place on October 12, 2007. The bid sheet reflected an $800 "creditor's bid" by Carpentier "as a credit toward the reduction of the amount of the writ, interest and costs."
Mangar expressly stated his "Non-Opposition" to an order winding up and dissolving the corporation, and his attorney approved the form of the proposed judgment. After discussions between counsel at the October 19, 2007 hearing, the parties agreed that there were no further unresolved issues and that the judgment would "clos[e] the loop on the proceedings."
In November 2007, however, Mangar obtained a substitution of counsel, who raised several objections to the terms of the proposed judgment. Even the $55,000 debt to Carpentier was disputed as beyond the court's jurisdiction. Mangar's new counsel also demanded the immediate return of Mangar's interest in the Surgery Center. When Carpentier's attorney refused, Mangar moved for a temporary restraining order (TRO) to prevent the sale of the seized shares. He also moved to quash the writ and set aside the levy and sale of the Surgery Center shares.
On November 29, 2007, the same day he filed the motion to quash and application for a TRO, Mangar filed a complaint in the present case (M87797) to set aside the "fraudulently obtained writ of execution," the "fraudulently obtained Order to Appear for Examination," and the sale of the Surgery Center shares. In the first amended complaint filed the next day, Mangar alleged that as no judgment had been entered, the writ of execution had been obtained "by false representations to the Court," because Carpentier was not a judgment creditor nor Mangar a judgment debtor. The absence of a judgment also made the sheriff's levy "wrongful." Mangar sought an order quashing the writ and setting aside the execution sale, return of the shares and any distributions Carpentier had received from the Surgery Center, and "all damages occasioned by defendant's conduct." Mangar filed his second amended complaint on January 31, 2008.
On December 6, 2007, the court found there were "questions as to the appropriateness of the writ of execution" and granted the TRO request, "pending hearing on [Mangar's] motion to quash, set for December 21, 2007." The next day, however, it filed the judgment and decree of corporate dissolution. The decree stated that the corporation was duly wound up and that no assets remained other than as set forth in the January 25, 2007 order. Mangar was specifically ordered to assume personal liability for the payment of all existing liabilities, including the $55,000 debt to Carpentier. Remaining amounts were to be distributed to the parties on a 50/50 basis.
Mangar asked the court to stay enforcement of the December 7 judgment and moved for a new trial. Carpentier opposed both requests. On January 10, 2008, the court granted the stay pending a decision on both the motion for new trial and the motion to quash to set aside the levy and turnover of shares in M87797. On January 24, 2008, the court denied Mangar's motion for a new trial.
On December 21, 2007, Carpentier moved for an award of attorney fees, citing Civil Code section 1717, Code of Civil Procedure section 1021, and Corporations Code section 1904. The trial court denied the motion, agreeing with Mangar that actions for corporate dissolution normally did not provide for attorney fees and did not result in a prevailing party.
The court heard the motion to quash the writ on December 21, 2007. In an amended order on February 19, 2008, the court granted the motion, noting that Carpentier had "obtained a writ of execution as a judgment creditor, but was not a judgment creditor." The court further recalled the sheriff's levy and set aside the execution sale.
On the same day the motion to quash was heard, Carpentier obtained a new writ of execution. The Notice of Levy, which the sheriff delivered to Carpentier himself at the Surgery Center in late January 2008, again described the property as the 1300 shares issued to Mangar. On February 15, 2008, Mangar moved to quash this second writ of execution or alternatively, for collection of the shares, contending that Carpentier had violated the court's stay order and that the shares were in any event not transferable under the corporate Shareholders Agreement. Carpentier responded that the TRO had expired, since the motion to quash the first writ had been heard. He also pointed out that after granting the first motion to quash at the December 21, 2007 hearing, the court had suggested to Carpentier, "maybe you can go back and get another writ." The merits of this second motion was addressed in an order resolving disputes over the amounts required to satisfy the judgment.
In its April 18, 2008 order the court ruled that upon "full satisfaction of the judgment" in M87797, the second writ of execution "shall be quashed," the subsequent notice of levy "shall be recalled," and the Surgery Center shares "shall be returned to Dr. Mangar."
Mangar's lawsuit challenging the first writ of execution (Case No. M87797) survived demurrer to both the first and second amended complaints. In early May of 2008, however, Carpentier moved to strike the second amended complaint as a Strategic Lawsuit Against Public Participation (SLAPP) under Code of Civil Procedure section 425.16. Mangar opposed the motion, arguing (1) it was untimely; (2) his action was based on "irregularities" in a statutory procedure for an execution sale, for which the litigation privilege was inapplicable; (3) Carpentier's act in "fraudulently procuring the execution sale" was illegal and therefore unprotected by the anti-SLAPP statute; and (4) he had a probability of prevailing on his complaint, in light of the court's prior order quashing the writ of execution and setting aside the sale and levy. In a supplemental argument, Mangar asserted that the sheriff's sale was a "purely business" event, not an act in furtherance of his right to petition or free speech.
The trial court granted Carpentier's anti-SLAPP motion on June 6, 2008. The court found that Mangar's complaint contained allegations of both protected and unprotected activity, but the gravamen of his claim was Carpentier's petitioning activity in procuring the eventual sheriff's sale. The court further found that Mangar's repeated allegation that Carpentier was not a judgment creditor constituted a judicial admission which precluded the remedy of an action to set aside the sale under Code of Civil Procedure section 701.680. Finally, the court found that the litigation privilege did apply in these circumstances, as all of the communicative acts challenged in the complaint formed "almost the entire factual basis for [Mangar's] claim." Without those communications, Mangar would be "unlikely to substantiate the alleged irregularities in the execution sale."
Mangar moved for reconsideration on the ground that the SLAPP ruling fatally conflicted with the February 19 order quashing the writ of execution and setting aside the sale of his Surgery Center shares. Mangar insisted that he wished "to fully satisfy the judgment." In order to do so, however, he needed to use his income-producing shares of the Surgery Center. Mangar therefore asked the court at least to clarify the June 6 order so that Carpentier could not maintain the position that the Surgery Center assets were unavailable to satisfy the judgment. On July 30, 2008, however, the motion for reconsideration was denied. The trial court found no new facts or circumstances within the meaning of Code of Civil Procedure section 1008. The court further acknowledged subdivision (c) of Code of Civil Procedure section 425.16, which authorized an award of attorney fees to Carpentier as the prevailing party in the anti-SLAPP motion.
Discussion
A. Mangar's Appeal
Mangar asserts error in the trial court's rulings under Code of Civil Procedure section 425.16. First, he argues, the court erred in allowing Carpentier to file his anti-SLAPP motion without "affirmatively exercising" its discretion to do so, contrary to case law applying subdivision (f) of the statute. He further argues that the anti-SLAPP motion should not have been granted because (1) his lawsuit did not arise from protected activity and (2) the court erred in finding he was unlikely to prevail on the merits of his wrongful-execution claim.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
1. Timeliness of the Motion
Section 425.16 allows a special motion to strike to be filed within 60 days of the service of the complaint, "or, in the court's discretion, at any later time upon terms it deems proper." (§ 425.16, subd. (f).) Carpentier filed his motion to strike on May 6, 2008, 96 days after service of the second amended complaint, following an order overruling his demurrer to the second amended complaint. The court addressed the motion, implicitly overruling Mangar's objection that the motion was untimely. On appeal, Mangar contends that the court "abused its discretion" by allowing the late motion to be filed "without affirmatively exercising its discretion to do so."
Mangar's contention is not well taken. His premise, that "the statute expressly provides that a late anti-SLAPP motion shall not be filed unless the court affirmatively exercises discretion to permit it to be filed," does not accurately reflect the language of section 425.16, subdivision (f). There is no requirement in this provision that the court articulate its reasons for hearing a late-filed anti-SLAPP motion. (See Du Charme v. International Broth. of Elec. Workers, Local 45 (2003) 110 Cal.App.4th 107, 113 [no authority offered for theory that court must state reasons for exercising discretion to hear belated anti-SLAPP motion].)
Olsen v. Harbison (2005) 134 Cal.App.4th 278, 286, while emphasizing the need for an affirmative exercise of discretion to allow a late filing, does not represent the proposition that an affirmative exercise is the equivalent of an express ruling. The Olsen court upheld the trial court's exercise of discretion to deny the defendant's anti-SLAPP motion, which had been filed 278 days after service of the complaint. (See also Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 681 [court did not exceed the bounds of reason by denying refiling of motion to strike six weeks after remand from bankruptcy court to superior court]; see also Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 776 (Platypus Wear). [permitting late filing after delay of more than two years was abuse of discretion where extensive litigation had already occurred and trial was to begin in less than three months].)
"The overall purpose of the SLAPP statute is to provide defendants with a procedural remedy 'which would allow prompt exposure and dismissal of SLAPP suits.' The 60[ ]day period in which a defendant may file a SLAPP motion as a matter of right appears to be intended to permit the defendant to test the foundation of the plaintiff's action before having to 'devote its time, energy and resources to combating' a 'meritless' lawsuit." (Morin, supra, 122 Cal.App.4th at p. 681, fns. omitted; accord, Platypus Wear, supra, 166 Cal.App.4th at p. 783.) Accordingly, the court must "carefully consider" whether allowing late filing is consistent with legislative goal of prompt resolution. (Platypus Wear, supra, 166 Cal.App.4th at p. 784.)
Here the court considered Mangar's untimeliness objection and Carpentier's reply, and exercised its discretion to permit the late filing. Whether we would have determined the issue differently is of no consequence, because the court did not exceed the bounds of reason or misunderstand its authority in hearing the motion. (See Olsen v. Harbison, supra, 134 Cal.App.4th at p. 285; Morin v. Rosenthal, supra, 122 Cal.App.4th at p. 681.)
2. The Anti-SLAPP Statute
Both parties appear to understand the nature of section 425.16 and the legislative intent underlying its enactment. A SLAPP is "a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights." (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1126; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 354-355.) Section 425.16 was enacted in 1992 to address the "disturbing increase" in the frequency of these meritless harassing lawsuits. (§ 425.16, subd. (a); see Navellier v. Sletten (2002) 29 Cal.4th 82, 85, fn. 1.) It was the Legislature's finding "that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly." (§ 425.16, subd. (a).) The statute was thus designed to deter meritless actions that "deplete 'the defendant's energy' and drain 'his or her resources,' [citation],... ' "... by ending them early and without great cost to the SLAPP target." ' [Citation.]" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278; Chabak v. Monroy (2007) 154 Cal.App.4th 1502.) A defendant who has been "victimized" by such meritless, retaliatory suits is entitled to relief in the form of attorney fees and costs. (Liu v. Moore (1999) 69 Cal.App.4th 745; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.)
3. Scope of Review
Section 425.16 expressly provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) In evaluating a motion under the statute the trial court engages in "a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon); Navellier v. Sletten, supra, 29 Cal.4th 82, 88; Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th 180, 192.) A plaintiff has met this burden if he or she has demonstrated 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 believed by the trier of fact. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741; accord, Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) The court must consider the pleadings along with affidavits stating the facts on which the alleged liability is based. (§ 425.16, subd. (b)(2).)
On appeal, we review the entire record independently to determine whether the defendant has shown that section 425.16 applies and, if so, whether the plaintiff has shown a probability of prevailing. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999; Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1063.) If the trial court's decision is correct on any theory applicable to the case, we affirm the order regardless of the correctness of the grounds on which the lower court reached its conclusion. (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 357.) On appeal, we independently determine whether the challenged cause of action arose from the defendant's exercise of the constitutional right of petition or free speech—and if so, whether the plaintiff has demonstrated a probability of prevailing on the merits of the claim. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1056; ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 999.) We consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) "However, we neither 'weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.' " (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 269, fn. 3, quoting HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212; Chabak v. Monroy, supra, 154Cal.App.4th 1502.)
4. Applicability of Section 425.16 to the Wrongful Execution Complaint
a. Protected Activity
In deciding the first prong of the SLAPP analysis, the trial court found both protected and unprotected activity. The unprotected activity, the court observed, was the sheriff's sale, a ministerial act that did not concern a dispute involving the exercise of free speech or right of petition. (Cf. Blackburn v. Brady (2004) 116 Cal.App.4th 670, 677 [bidding at sheriff's auction is a "purely business" event, not an act in furtherance of free speech or petition].) The gravamen of Mangar's claim, however, rested on protected petitioning activity -- in particular, submitting the writ of execution to the court, obtaining the writ of execution, obtaining an order for Mangar to appear for examination, and making representations to the sheriff's office in order to obtain levy on and seizure of the shares of the surgery center. Mangar's second amended complaint had specifically focused on that conduct.
Mangar acknowledges the allegations of fraud contained in the complaint, but he insists that they are not the gravamen of the cause of action. "The misrepresentations made to the court clerk and sheriff speak to the quality, ethical propriety, and integrity of respondent's actions, and certainly explain why the clerk might have issued an improper writ of execution, and the sheriff might have improperly allowed Carpentier to credit bid at the execution sale, but these allegations are not fundamental to the cause of action.... The cause of action under [section] 701.680 [arose only] when the execution sale occurred and when [Carpentier] purchased the surgery center shares at the sale. Thus the gravamen, the substantial essence of appellant's claim, is that the sale itself was inappropriate, because the underlying writ of execution was improperly issued, and the conduct of the sale was improper." In short, Mangar maintains that the cause of action for wrongful execution arose from fundamental errors that were independent of Carpentier's misrepresentations, even if the misleading and untruthful statements led to the inappropriate event.
"As courts applying the anti-SLAPP statute have recognized, the 'arising from' requirement is not always easily met." (Equilon, supra, 29 Cal.4th at p. 66.) As the Supreme Court has explained, "the statutory phrase 'cause of action... arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) The requirement can be satisfied only by showing that the defendant's conduct falls within one of the four statutory categories described in section 425.16, subdivision (e). (Equilon, supra, 29 Cal.4th at p. 66 .) The categories Carpentier implicitly invoked were the first two: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law"; and "(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." (§ 425.16, subds. (e)(1), (e)(2).) Carpentier's theory was that Mangar's lawsuit was based on statements and writings he had made before the superior court in connection with the dissolution action; the sheriff's sale was only the "source of money," one step toward completion of the corporate dissolution.
"In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity. " (Navellier v. Sletten, supra, 29 Cal.4th at p. 89; City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) "In Navellier, the court cautioned that the 'anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability-- and whether that activity constitutes protected speech or petitioning.' " (Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 187, quoting Navellier v. Sletten, supra, 29 Cal.4th at p. 92.) In other words, "it is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute." (Martinez v. Metabolife Internat., Inc., supra, 113 Cal.App.4th at p. 188; Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 802 [applicability of anti-SLAPP statute determined by "principal thrust or predominant nature of the complaint"].)
Applying these cautionary remarks, we agree with the trial court that the gravamen of the second amended complaint was the alleged wrongful conduct in court, which enabled Carpentier to procure a writ of execution, execution sale, and Order to Appear for Examination. While Mangar continually refers to the pleading as "complaint for wrongful execution," its title was "Second Amended Complaint to Set Aside Fraudulently Procured Execution Sale and For Damages." On appeal he characterizes the allegations as targeting the execution sale, which was "inappropriate because the writ of execution should not have been issued as there was then no judgment" and because Carpentier was not a judgment creditor. Mangar is correct that such allegations would state a cause of action under section 701.680 to set aside the sale for "irregularities" or other procedural defects. But Mangar's complaint described much more than an execution sale invalidated by procedural infirmities. He related the history and content of the January 25, 2007 minute order and then made the following allegations of wrongful conduct: (1) "Even though there was no judgment entered, on February 6, 2007, Dr. Carpentier submitted a writ of execution to the Superior Court clerk's office... and caused the clerk's office to issue a writ of execution in Dr. Carpentier's name as an individual as a judgment creditor"; (2) Carpentier's attorney "changed the caption of the case on the writ of execution so that the caption would misleadingly suggest that the case involved plaintiffs and defendants, rather than a petition for dissolution"; (3) Carpentier "wrongfully used" the writ of execution to levy upon and sell Mangar's shares in the Surgery Center; (4) After being denied a turnover order, Carpentier "continued to improperly use the Court's process to obtain post-judgment remedies, even though no judgment had been entered"; (5) Carpentier "improperly sought and obtained a judgment creditor's Order to Appear for Examination," by "falsely recit[ing], under penalty of perjury, that Dr. Mangar was a 'judgment debtor,' even though no judgment had been entered, and even though Dr. Mangar was not a judgment debtor"; and (6) Carpentier "falsely and fraudulently represented" to the sheriff that he was a judgment creditor in order to obtain the levy on and seizure of the Surgery Center shares.
Of these substantive allegations all but the third and sixth pertained to Carpentier's petitioning activity. Consequently, Mangar may be correct that "the gravamen of a complaint for wrongful execution is not that misrepresentations were made to the court, but that the execution sale was improper, or the property was not subject to execution." But the gravamen of this complaint was Carpentier's misuse of the judicial process to obtain that execution sale. Even if it is considered a "mixed cause of action," the protected conduct was essential to the cause of action, not "merely incidental to the unprotected activity"; consequently, the allegation of unprotected conduct (the sheriff's sale) does not remove the complaint from the reach of the anti-SLAPP statute. (See Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103 [where complaint alleges both protected and unprotected activity, section 425.16 applies unless the protected conduct is 'merely incidental' to the unprotected conduct]; cf. Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287-1288 [allegations of intentional interference with prospective economic advantage were not merely incidental to allegations of unprotected activity]; compare Martinez v. Metabolife Int'l, Inc., supra, 113 Cal.App.4th at p. 188 [anti-SLAPP statute inapplicable where complaint premised on product defect and only incidentally mentions commercial speech used to market product].) The misleading and untrue statements Carpentier allegedly made in court in connection with the dissolution proceeding constituted protected communicative activity within the meaning of section 425.16, subdivisions (b)(1) and (e).
Both parties discuss the relevance of Rusheen v. Cohen (2006) 37 Cal.4th 1048. There Cohen, the cross-defendant in a cause of action for abuse of process, was alleged to have obtained a judgment and resulting writ of execution and levy through the filing of perjured declarations of service on Rusheen, the cross-complainant. The Supreme Court held that if the gravamen of an action is directed at communicative acts, "the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct." (Id. at p. 1065.) Thus, not only was the procurement of the judgment protected, but acts necessary to enforce the judgment—including the obtaining of a writ of execution and ensuing levy—were also privileged. While the cause of action is different here, Mangar's complaint was primarily directed at Carpentier's fraudulent "procurement of the judgment, not its enforcement." (Ibid.) Thus, by analogy to Rusheen, Carpentier's protected activity extended to his successful efforts to obtain a writ of execution and notice of levy.
In citing Rusheen Carpentier implies that the complaint in the case was for wrongful execution. His oblique suggestion is without foundation.
It makes no difference that the Supreme Court pointed to wrongful execution as an alternative cause of action to abuse of process. It cannot logically be concluded that because Rusheen could have claimed wrongful execution, then a plaintiff who does make that claim is immune from an anti-SLAPP motion. Neither the reasoning in Rusheen nor the appellate decision it cites, Brown v. Kennard (2001) 94 Cal.App.4th 40, changes the result in this case.
Mangar further argues, however, that Carpentier is not entitled to the protection of section 425.16 because Carpentier's conduct was illegal. Relying on Flatley v. Mauro (2006) 39 Cal.4th 299 and Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356 (disapproved on another point in Equilon, supra, 29 Cal.4th at p. 68, fn. 5), Mangar contends that Carpentier's attorney misrepresented Carpentier's status as a judgment creditor in applying for a writ of execution, thereby violating the Rules of Professional Conduct, rule 5-200(b) and Business and Professions Code section 6068, subdivision (d).
Carpentier's conduct was not comparable to the crimes committed in Paul for Council and Flatley. In Paul for Council the moving defendants had engaged in money laundering; in Flatley, the "specific and extreme circumstances" clearly demonstrated extortion as a matter of law. (Flatley, supra, 39 Cal.4th at p. 332, fn. 16.) The Supreme Court in Flatley held that "where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant's exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action." (Id. at p. 320.) Here a legal point was in dispute, whether Carpentier was a judgment creditor and thus entitled to a writ of execution. The legality of his conduct was a legitimate issue, not a conclusively established illegal act committed under "extreme circumstances." (Flatley, supra, 39 Cal.4th at p. 332, fn. 16; see Code Civ. Proc., §§ 680.230 ["judgment"], 680.240 ["judgment creditor"], 680.250 ["judgment debtor"], 680.270 ["money judgment"].)
Mangar's argument corroborates the concern expressed by Justice Werdegar in her concurring opinion to Flatley. Her divergence from the majority's exception to the first prong for illegal acts included the point that "[s]ince by definition all conduct sued upon is alleged to be illegal, the majority's assurances that the 'narrow circumstance'... for plaintiffs' invoking an illegal-as-a-matter-of-law defense to an anti-SLAPP defense to an anti-SLAPP motion will occur only in 'rare cases'... are not convincing." (Flatley, supra, 39 Cal.4th at p. 335 [conc. opn of Werdegar, J.].)
b. Probability of Prevailing
Having found that Carpentier had met his burden to show that the second amended complaint arose from Carpentier's protected petitioning activity, the trial court turned to the second prong of its SLAPP analysis, whether Mangar had made a prima facie showing of facts necessary for relief. Whether a plaintiff has established a prima facie case is a question of law. (Zamos v. Stroud, supra, 32 Cal.4th at p. 965.) In deciding the question of potential merit the court examines the pleadings and evidentiary submissions of both parties, but it may not "weigh the evidence or make credibility determinations; doing either would violate plaintiff's right to a jury trial." (Colt v. Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551, 1557.) If the suit is shown to "possess minimal merit," it is sufficient to defeat the motion. (Navellier v. Sletten, supra, 29 Cal.4th at p. 93; Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1276.) The court should grant the motion, however, if the defendant's opposing evidence defeats the plaintiff's showing as a matter of law. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at pp. 105-106.)
Here the trial court concluded that Mangar was not likely to succeed for two reasons. First, section 701.680, on which Mangar relied, did not permit the sale to be vacated if, as Mangar insisted, Carpentier was not a judgment creditor. Furthermore, the court found, Carpentier was entitled to the benefit of the litigation privilege of Civil Code section 47, subdivision (b) (hereafter section 47(b)). We find no error in the court's second point.
With specified exceptions not applicable here, section 47(b) creates a privilege for a statement made in a judicial proceeding or "in any other official proceeding authorized by law...." Mangar again cites Flatley for the observation that "the litigation privilege and the anti-SLAPP statute are substantively different statutes that serve quite different purposes, and it is not consistent with the language or the purpose of the anti-SLAPP statute to protect such threats." (Flatley, supra, 39 Cal.4th at pp. 322, 323-325.) That point, however, was directed at the first step of the SLAPP analysis. The privilege remains "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." (Id. at p. 323.) Indeed, the court emphasized that "the question of whether the defendant's underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing, and the showing required to establish conduct illegal as a matter of law--either through defendant's concession or by uncontroverted and conclusive evidence-- is not the same showing as the plaintiff's second prong showing of probability of prevailing." (Id. at p. 320.)
The court explained, "The litigation privilege embodied in Civil Code section 47, subdivision (b) serves broad goals of guaranteeing access to the judicial process, promoting the zealous representation by counsel of their clients, and reinforcing the traditional function of the trial as the engine for the determination of truth.... [¶] Section 425.16 is not concerned with securing for litigants freedom of access to the judicial process. The purpose of section 425.16 is to protect the valid exercise of constitutional rights of free speech and petition from the abuse of the judicial process (§ 425.16, subd. (a)), by allowing a defendant to bring a motion to strike any action that arises from any activity by the defendant in furtherance of those rights. (§ 425.16, subd. (b)(1).) By necessary implication, the statute does not protect activity that, because it is illegal, is not in furtherance of constitutionally protected speech or petition rights." (Flatley, supra, 39 Cal.4th at p. 324.)
" 'The principal purpose of [the litigation privilege] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]' [Citation.] In order to achieve this purpose of curtailing derivative lawsuits, we have given the litigation privilege a broad interpretation." (Action Apartment Ass'n, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241, quoting Silberg v. Anderson (1990) 50 Cal.3d 205, 213.) "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 ha[s] some connection or logical relation to the action." (Silberg v. Anderson, supra, 50 Cal.3d at p. 212.)
"Moreover, '[t]he litigation privilege is not limited to the courtroom, but encompasses actions by administrative bodies and quasi-judicial proceedings.' " (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913.) It extends beyond statements made in the proceedings and extends to statements made to initiate official action, including the enforcement of the resulting judgment. "Extending the litigation privilege to postjudgment enforcement activities that are necessarily related to the allegedly wrongful communicative act is consistent with public policy considerations. The purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation (Silberg, supra, 50 Cal.3d at pp. 213-214....) To effectuate these purposes, the litigation privilege is absolute and applies regardless of malice." (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1063.)
Here, as we have discussed, the focus of Mangar's complaint was Carpentier's successful effort to obtain a writ of execution and order of examination, which thus allowed him to secure Mangar's shares of the surgery center. This litigation conduct was privileged under section 47(b) and therefore prevents Mangar from succeeding on his action. The trial court did not err in recognizing the applicability of the litigation privilege in these circumstances and thus finding no probability that Mangar could prevail on his complaint.
B. Carpentier's Appeal
Carpentier urges review of the February 19, 2008 order quashing the writ of execution and setting aside the execution sale. He cites Code of Civil Procedure section 701.680, which prohibits the vacation of execution sales except when the judgment creditor was the purchaser at the sale. (See Gonzalez v. Toews (2003) 111 Cal.App.4th 977, 981.) Although he has maintained throughout the litigation that he was a judgment creditor, Carpentier now takes the opposite approach, arguing that Mangar must be held to his position that the execution sale was invalid because Carpentier was not a judgment creditor. On this premise Carpentier concludes that the sale of the Surgery Center shares was absolute and should not have been set aside. Carpentier further argues that with the failure of Mangar's complaint for wrongful execution, the execution sale was necessarily validated.
Mangar first responds that Carpentier's appeal is untimely as well as meritless. He appears to assume that the order quashing the writ of execution was either an order after the December 2007 judgment in the dissolution action (M74394) or a separately appealable order within this action, which he initiated in November 2007. In either view, according to Mangar, Carpentier should have appealed within the 60-day period following the February 19, 2008 amended order.
Carpentier's reply to Mangar's timeliness challenge appears to be that the order quashing the writ of execution was an interim order which was not appealable; hence, he had to wait until a "final judgment of dismissal" was entered before he could contest the order. We are not convinced by Carpentier's response. He did not appeal from the section 425.16 order. His notice of appeal specifically states that he was appealing from "the Court's rulings setting aside the sheriff's execution sale or quashing writ of execution and the Amended Order Quashing Writ of Execution, Setting Aside Levy, and Ordering Turnover entered on February 19, 2008." If that order was appealable, as his notice of appeal assumes, then the appeal is untimely. If instead, as he insists in his reply brief, the order was only an interim ruling, then his appeal was taken from a nonappealable order. Although it is proper to construe a defective notice of appeal liberally to encompass a later judgment (Walker v. Los Angeles County Metropolitan Transp. Authority (2005) 35 Cal.4th 15, 19-21), that practice is not called for in every case, and Carpentier does not ask this court to do so. Under the Rules of Court a notice of appeal "is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.100(2).) Carpentier did identify the order from which he was appealing: it was the February 19, 2008 order. His Civil Case Information Statement confirms that his appeal was from an "Interim ruling made before judgment."
There is no "final judgment of dismissal" in the record, but only an order striking Mangar's complaint, an appealable order under Code of Civil Procedure sections 904.1, subdivision (a)(13) and 425.16, subdivision (i).
Although the caption of Mangar's motion to quash bears the case number of this wrongful execution action, the motion was nonetheless a challenge to Carpentier's successful attempt to enforce the January 25, 2007 order in M74394. It was Carpentier who insisted that the January 25 order was an enforceable judgment, while Mangar based his motion to quash on the assertion that the writ of execution was premature because the judgment of dissolution had not yet been entered. Thus, Mangar's implied characterization of the February 19, 2008 order as an order after judgment is understandable, whether the "judgment" is considered to be the December 7, 2007 judgment of dissolution or the earlier order of January 25, 2007. We need not follow this line of reasoning, however, as it is unnecessary for a determination of the cognizability of Carpentier's challenge on appeal.
Carpentier's Civil Case Information Statement cites Code of Civil Procedure section 906 as the statutory basis for his appeal. That statute does not help him, as it contemplates a valid appeal from an appealable order or judgment before an intermediate ruling is subject to review.
Had Carpentier asked this court to construe his notice of appeal as being from the order striking Mangar's complaint under section 425.16, such a request would invite a determination either that the appeal is moot or that he was not an aggrieved party, based on his theory that the anti-SLAPP order implicitly validated the execution sale. Having no such request before us, we will not consider the potential ramifications of the position Carpentier purports to advance on appeal. As the appeal is either untimely or taken from a nonappealable "interim ruling," we cannot address the issues he raises.
Carpentier's insistence that he was a judgment creditor and therefore entitled to the writ of execution is clearly at odds with his position that the execution sale should not have been overturned because he was not a judgment creditor.
Were we to consider the merits, we would question the premise underlying Carpentier's appeal—i.e., that the anti-SLAPP ruling necessarily implied a finding that the writ of execution was proper.
Disposition
The section 425.16 order from which Mangar appeals is affirmed. Carpentier's appeal is dismissed. Each party is entitled to costs incurred as a respondent in the other's appeal.
WE CONCUR: RUSHING, P. J., PREMO, J.