Opinion
A151819
06-29-2018
FRANK MARDEUSZ, Plaintiff and Appellant, v. MARY LACE et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. CGC-17-558214)
David Bradlow, a court-appointed receiver in ongoing civil litigation, was directed to take control of and sell property located at 1072-1074 Filbert Street in San Francisco (the Property). Bradlow retained Sotheby International Realty, Inc. (Sotheby) and Mary Lace, Sotheby's agent, to assist in listing and selling the Property. Appellant Frank Mardeusz sued Bradlow, Sotheby, and Lace alleging, among other things, contract interference and "abuse of court process by extrinsic fraud." Mardeusz also named as defendants John Fischer and "Ronald" (Aron) Oliner (respectively an agent and attorney retained by Bradlow in his capacity as receiver; we refer to Bradlow, Sotheby, Lace, Fischer, and Oliner collectively as Respondents).
Bradlow, Fischer, and Oliner moved to strike the complaint pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16). Sotheby and Lace filed a joinder in the motion. The trial court approved joinder and granted the motion. Mardeusz appeals. We affirm.
Undesignated statutory references are to the Code of Civil Procedure. SLAPP is an acronym for strategic lawsuit against public participation. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57 & fn. 1.)
I. BACKGROUND AND PROCEDURAL HISTORY
To provide necessary context, we recite the rather sad and sordid history of the underlying litigation, as set forth in our opinion in a recent direct appeal in that matter. (Parisi v. Mazzaferro (April 25, 2018, A146778) [nonpub. opn.].)
"Luciano and Anna Fiorani created the Fiorani Living Trust (Trust) to provide for their adult developmentally disabled daughter. . . . Ronald Mazzaferro was removed as trustee of the Trust by the probate court, and his mother, Elizabeth Mazzaferri, was appointed as successor trustee. (See Mazzaferri v. Mazzaferro (Nov. 9, 2011, A131261) [nonpub. opn.].) William Parisi is the conservator for the Fiorani's daughter. Trust assets included [the Property], as well as bank and investment accounts. (See Parisi v. Lotchk Corp. (June 10, 2013, A135121) [nonpub. opn.].)
"For well over a decade, the parties to this matter have been embroiled in contentious litigation over control of Trust assets and other ancillary intrafamily disputes. . . . [A]n April 2014 settlement agreement (Settlement) [was entered] regarding two consolidated actions against Mazzaferro and others. Pursuant to the Settlement, Mazzaferro was to pay to the conservator the sum of $2,327 million, with periodic payments to be made over a three-year term. The Settlement obligations were to be secured by a deed of trust on the Property originally held by the Trust. The parties specifically requested that the trial court retain jurisdiction to enforce the Settlement pursuant to . . . section 664.6.
See, e.g., Parisi v. Mazzaferro (2016) 5 Cal.app.5th 1219, 1222 and footnote 3. Mazzaferro has been declared a vexatious litigant and sanctioned by both the trial court and this court. (See, e.g., Mazzaferri v. Mazzaferro, supra, A131261.)
In 2010, Mazzaferri filed a complaint against Mazzaferro and others seeking to recover Trust assets, alleging breach of trust, breach of contract, breach of fiduciary duty, intentional and negligent misrepresentation, conversion, conspiracy, quiet title, return of trust property, imposition of a constructive trust, and declaratory relief. In 2012, Parisi filed a petition against Mazzaferro and others for financial abuse of a dependent adult, fraud, and constructive fraud. The cases were consolidated and were the matters at issue in Parisi v. Mazzaferro, supra, A146778.
"Mazzaferro failed to make payments, execute the deed of trust, and cure the Property's tax delinquencies as required by the Settlement. Parisi and Mazzaferri moved to enforce the Settlement. In the motion, additional relief was sought to correct alleged 'scrivener's errors' in the Settlement, appoint a receiver, and obtain injunctive relief. Parisi submitted a proposed form of judgment awarding the entire Settlement amount of $2.327 million. Mazzaferro opposed the motion, which was heard on December 11, 2014. On February 18, 2015, the [trial] court entered a formal order granting the motion in part, finding it undisputed that the parties had entered into the Settlement and certain Settlement obligations had not been met. Judgment was entered accordingly and served on the parties, on the same date, with the Settlement attached and incorporated into the judgment . . . ." (Parisi v. Mazzaferro, supra, A146778, fns. omitted.)
The trial court declined to impose a receiver at that time, finding that Parisi was required to satisfy statutory and procedural prerequisites for such relief. Parisi appealed alleging that the judgment as entered failed to provide the relief required and was therefore "void." We rejected Parisi's arguments and affirmed the judgment. (Parisi v. Mazzaferro, supra, A146778.)
In the interim, Edith Mazzaferri, as trustee, moved for appointment of a receiver, alleging the Property was "the last and only valuable asset remaining in the Trust" and that Mazzaferro had attempted to fraudulently transfer and encumber the Property and convert it for his own benefit through a series of sham transactions. On July 22, 2015, the court granted the motion and appointed Bradlow as receiver, with instructions to "take full and complete possession and control" of the Property. Bradlow evicted Mardeusz and Mazzaferro from the Property.
As discussed post, Mardeusz named Mazzaferro as a nominal defendant pursuant to section 382 ("unwilling plaintiff"). As noted, Mazzaferro has been declared a vexatious litigant.
Mazzaferro's attempt to take a pro se appeal from this order was rejected.
As receiver, Bradlow was given specific authority to sell the Property and to engage real estate brokers for that purpose. Bradlow retained Sotheby and Lace as the real estate broker and agent to list and sell the Property. The Property was listed for sale on April 7, 2017.
Mardeusz filed the instant action on April 17, 2017. His complaint asserted causes of action for "abuse of court process by extrinsic fraud," "interference with contract," "violation of . . . Civil Code section 1088 by false deceptive MLS listing," and "professional negligence."
In addition to Respondents, Mardeusz sued three attorneys, Olivia Dopler, Thomas Gelini, and Julie Batz, alleging they were part of a "criminal conspiracy." Bradlow averred that Dopler was an attorney he retained in his capacity as a receiver, and that Gelini and Batz were insurer-appointed defense counsel for Fischer in a subsequently dismissed action brought by Mardeusz. The register of actions in this matter reflects no appearances by these defendants, and they are not parties to this appeal. As noted ante, Mardeusz also named Mazzaferro as a nominal defendant (unwilling plaintiff) pursuant to section 382, alleging he and Mazzaferro "were and continue to be engaged in and obligated to each other by and through an ongoing mutually beneficial contract by them entered into to preserve, protect, defend, and maintain" the Property.
On April 26, 2017, Bradlow, Fischer, and Oliner filed a special motion to strike the entirety of the complaint pursuant to section 425.16. Sotheby and Lace filed a joinder in the motion. In his declaration in support of the motion, Bradlow recited his appointment as the receiver, and the court order directing him to sell the Property. Bradlow also confirmed his retention of Sotheby and Lace as broker and agent in the sale of the Property. Grounds asserted for the motion were (1) their actions qualified as protected activity in the form of writings or statements in a judicial proceeding, and (2) Mardeusz could not meet his burden of showing a probability of prevailing on any cause of action—specifically, Mardeusz had no standing to sue, he had not secured the court's prefiling consent to sue the receiver, his claims were barred by the litigation privilege (Civ. Code, § 47, subd. (b)), and the defendants had not caused him harm.
Mardeusz opposed the motion. He alleged the complaint pled facts establishing "criminal activity" by Respondents "in violation of numerous California Penal Code Sections and felony violation of Mail Fraud 'Frauds and Swindles' statutes Title 18 U.S.C. 1341." Consequently, he argued Respondents' activities were "illegal as a matter of law" and not constitutionally protected.
On June 16, 2017, the court entered orders granting the joinder of Sotheby and Lace, and granting the motion to dismiss as to all Respondents. In its order, the court wrote: "The complaint's allegations all relate to petitioning activities, and [Mardeusz's] opposition makes no attempt to establish a likelihood that he will prevail. Instead, [Mardeusz] merely recycles his complaint's largely incoherent assertions . . . without submitting any evidence." Mardeusz appeals.
II. DISCUSSION
The anti-SLAPP statute provides in relevant part: "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." (§ 425.16, subd. (b)(1).)
"The Supreme Court has 'summarize[d] a court's task in ruling on an anti-SLAPP motion to strike as follows. Section 425.16, subdivision (b)(1) requires the court to engage 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.' " (All One God Faith, Inc. v. Organic & Sustainable Industry Standards, Inc. (2010) 183 Cal.App.4th 1186, 1199.) " 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e).' " (Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1396.) " '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.' [Citation.] [¶] . . . [¶] . . . 'In order to establish a probability of prevailing on the claim (§ 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must " 'state[] and substantiate[] a legally sufficient claim.' " [Citations.] Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' " (Taus v. Loftus (2007) 40 Cal.4th 683, 712-714, implicitly overruled on other grounds in Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.)
"In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); 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." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.); see Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192 [under § 425.16 "the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation"]; Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 614 ["a plaintiff cannot simply rely on its pleadings, even if verified, but must adduce competent, admissible evidence"].) On appeal, we review the motion to strike de novo to determine whether the parties have met their respective burdens. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3; Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 79.) A. Motions to Dismiss the Appeal
By separate motions, Respondents ask that we dismiss this appeal as frivolous, find Mardeusz to be a vexatious litigant, and award sanctions against him. We deferred ruling on the motions.
The order deferring ruling was entered on August 8, 2017, by the Presiding Justice for Division Four, where this matter was originally assigned. The appeal was transferred to Division Five by order of the Supreme Court on February 26, 2018. On February 28, 2018, Mardeusz filed a motion in this court seeking transfer back to Division Four. The motion was misdirected. We do not countermand the orders of the Supreme Court.
Respondents seek to invoke our inherent authority to dismiss an appeal that is frivolous or taken solely for delay. (In Re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 516.) We have previously dismissed as frivolous four other appeals from trial court orders issued on receivership matters. As discussed post, we find no merit in the present appeal and readily conclude it is intended only to impede and delay the receiver in performing the duties delegated to him by the court below. However, we elect not to dismiss this appeal and instead address the issues presented on the merits. We do so because it is more than evident from the history of the proceedings we have noted in the trial court and before us, and those related proceedings of which we take judicial notice, that Mardeusz (and other Mazzaferro surrogates) will continue attempts to thwart implementation and enforcement of trial court orders wherever possible. A decision on the merits will serve as law of the case in dealing with such ongoing misconduct, and may provide some level of collateral restraint on such behavior.
On our own motion, we take judicial notice of the fact that Mardeusz improperly attempted to file a first amended complaint while the anti-SLAPP motion was pending. (See Salma v. Capon (2008) 161 Cal.App.4th 1275, 1294.) In this pleading, inter alia, Mardeusz sought to name judges Ronald E. Quidachay, James A. Robertson, II, and Lynn O'Malley Taylor as defendants, as well as Sandra Kay Hilton, a clerk of the trial court, and a proposed purchaser of the Property. A copy is provided to us as Exhibit 7 to Respondents' motion for sanctions, which we discuss further post.
" 'Under the law of the case doctrine, when an appellate court " 'states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal . . . .' " [Citation.] Absent an applicable exception, the doctrine "requir[es] both trial and appellate courts to follow the rules laid down upon a former appeal whether such rules are right or wrong." ' " (Investors Equity Life Holding Co. v. Schmidt (2015) 233 Cal.App.4th 1363, 1377.)
1. Standing
We first briefly address arguments presented by both sides challenging legal standing to pursue positions in this appeal. Mardeusz devotes the majority of his opening brief to attacking the authority of the receiver. He has no standing to directly attack the order. The order appointing Bradlow was entered in a matter to which Mardeusz is not a party and is a final order. Mardeusz may not pursue a collateral attack on the authority of receiver. (See Lieberman v. Superior Court (1925) 72 Cal.App. 18, 34 [" 'rule against collateral attack applies to orders and judgments made by the courts in special proceedings taken before them . . . provided the matter involves a judicial determination and carries the sanction of the court's authority' "].)
As noted ante, Mazzaferro attempted to appeal the order appointing the receiver, but was denied the prefiling order required of a vexatious litigant.
Respondents contend that the action against Bradlow and his agents is barred by failure to obtain a prefiling order permitting him to do so. (§ 568; Vitug v. Griffin (1989) 214 Cal.App.3d 488, 493.) This argument has merit, but the permission requirement is not a jurisdictional one. (Vitug, at p. 493.) Since we find the court properly dismissed the entire action as to Respondents under section 425.16, we need not divert our attention to analysis of this issue. We discuss other standing challenges presented by Respondents post.
2. Joinder
Mardeusz contends the joinder in the anti-SLAPP motion filed by Sotheby and Lace was "insufficient to place [Lace] and [Sotheby] before the court in connection with the affirmative relief sought by [Bradlow, Oliner and Fischer]." While citing to two cases discussed post, Mardeusz does not support his argument with reasoned discussion. His failure to articulate any intelligible legal argument may be deemed an abandonment issue. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ["[w]hen an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"].)
The authorities Mardeusz cites are, in any event, inapposite. He cites only to Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, which in turn cites to Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26. In Decker, the special motions to strike that a codefendant sought to join only asked to strike the complaint as to the originally moving defendant. (Decker, at pp. 1386, 1391.) Here the motion sought to strike the entire complaint. In Village Nurseries, the defendant seeking to join in a summary judgment motion of other defendants, never moved for summary judgment in his own favor and did not file the separate statement required by section 437c. (Village Nurseries, at pp. 46-47.) A special motion to strike differs significantly from a motion for summary judgment. (Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 661 [party joining a motion for summary judgment must present its own evidence to establish the necessary factual foundation to support the motion; "to trigger a response from a plaintiff in a special motion to strike, a moving defendant need only demonstrate that the action arises out of protected First Amendment activity"].) Barak rejected an argument of improper joinder in an anti-SLAPP motion, finding no abuse of discretion in permitting the joinder " 'because all the Defendants are in the same relative position with regards to Plaintiff's claims set forth in the Complaint.' " (Ibid.) The same is true here.
3. Protected Activity
The pleading allegations of Mardeusz's complaint are all directed to Bradlow's statements to police, the eviction of Mardeusz from the Property, and the listing of the Property for sale by the receiver. Mardeusz alleges that "defendants" (with the exception of Mazzaferro) "committed and or participated in covering up and perpetuating various deliberate, willful, knowing and malicious extrinsic fraud criminal acts giving rise to fraudulent forcible entry to [the Property] by the illegal and fraudulent falsely induced use of police power to gain illegal unlawful trespass entry without having informed the police of their true intention to commit criminal trespass to effectuate theft of [the Property]." The third cause of action of the complaint alleges that Sotheby and Lace published false and misleading information about the Property on the MLS listing by failing to "disclose the . . . criminal extrinsic fraud of defendants . . . or that she is not selling the property with the permission of the actual owner of record." All of the underlying actions were undertaken by Bradlow and his authorized agents pursuant to Bradlow's authority as the court appointed receiver and in connection with the litigation between Parisi and Mazzaferro.
"Litigation is activity protected by the speech and petition clauses." (Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 449.) Under the anti-SLAPP statute, an " 'act in furtherance of a person's right of petition' " is specifically defined to include: "(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 . . . ." (§ 425.16, subd. (e).) "Cases construing the subdivision hold that 'a statement is "in connection with" litigation under section 425.16, subdivision (e)(2), if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.' " (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962; see Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480 ["[u]nder the plain language of section 425.16, subdivision (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"].) Respondents have met their burden to show that their actions were taken "in furtherance of [their] right of petition or free speech under the United States or California Constitution in connection with a public issue" as defined in the section 425.16, subdivision (b)(1).
Mardeusz insists that Respondents nevertheless cannot satisfy this threshold prong of the anti-SLAPP statute because their conduct was "illegal as a matter of law," citing Flatley v. Mauro (2006) 39 Cal.4th 299, 320 (Flatley) and Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1296-1297 (Novartis). He is incorrect.
Mardeusz conflates the second prong of the anti-SLAPP analysis—the probability of prevailing on the merits—with the first. As we explained in Seltzer v. Barnes, supra, 182 Cal.App.4th 953, it is not Respondents' responsibility to show their actions were constitutionally protected as a matter of law. (Id. at p. 964.) "As the California Supreme Court explained in Navellier [v. Sletten (2002)] 29 Cal.4th [82,] 95: If [the defendant] were required to do so, ' "then the [secondary] inquiry as to whether the plaintiff has established a probability of success would be superfluous.' [Citations.]' (See also Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305 ['[t]he problem with [the plaintiff's] argument is that it confuses the threshold question of whether the SLAPP statute applies with the question whether [the plaintiff] has established a probability of success on the merits']; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1089 ['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'].)" (Seltzer, at p. 964.)
In Flatley, the court held that, where "the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law," such activity will not support the special motion to strike. (Flatley, supra, 39 Cal.4th at p. 320, italics added.) "In such a narrow circumstance, where either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence, the motion [to strike] must be denied. The rationale is that the defendant cannot make a threshold showing that the illegal conduct falls within the purview of the statute and promotes section 425.16's purpose to 'prevent and deter "lawsuits [referred to as SLAPP's] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a).)' [Citation.] If, however, a factual dispute exists about the legitimacy of the defendant's conduct, it cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff's burden to show a probability of prevailing on the merits." (Flatley, at p. 316.) Similarly, in Novartis, which upheld denial of an anti-SLAPP motion and upon which Mardeusz also relies, the evidence "conclusively establish[ed] that the activities described at length in the [plaintiffs'] complaint, and about which there is no dispute, are illegal as a matter of law. Indeed, [defendant] has conceded that the attacks on [plaintiff's] employees were unlawful." (Novartis, supra, 143 Cal.App.4th at p. 1296.)
"The burden is on the party opposing a section 425.16 motion to strike to show that no factual dispute exists. [Citation.] . . . [I]f a plaintiff contesting the validity of a defendant's exercise of protected rights 'cannot demonstrate as a matter of law that the defendant's acts do not fall under section 425.16's protection, then the claimed illegitimacy of the defendant's acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiff's burden to provide a prima facie showing of the merits of the plaintiff's case.' " (Seltzer v. Barnes, supra, 182 Cal.App.4th at p. 965.) Mardeusz's repeated allegations of illegality are far from conceded in this instance, and nothing in the bare allegations of the unverified complaint conclusively establishes any unlawful conduct by Respondents. Mere talismanic invocation of "illegality" or "unlawful" conduct is not alone sufficient to defeat the protections of the statute. "To find otherwise would eviscerate the anti-SLAPP statute's protections because the plaintiff could preclude the statute's application simply by alleging criminal conduct by the defendant." (Safari Club Internat. v. Rudolph (9th Cir. 2017) 862 F.3d 1113, 1121.)
4. Probability of Prevailing
"In assessing the probability of prevailing, a court looks to the evidence that would be presented at trial, similar to reviewing a motion for summary judgment; a plaintiff cannot simply rely on its pleadings, even if verified, but must adduce competent, admissible evidence." (Roberts v. Los Angeles County Bar Assn, supra, 105 Cal.App.4th 604, 613-614.) "However, a defendant that advances an affirmative defense to the plaintiff's claims bears the burden of proof on the defense." (Seltzer v. Barnes, supra, 182 Cal.App.4th at p. 969.) Here, Mardeusz made no attempt in the trial court to present any evidence to establish a prima facie case. Instead he attempted to rely on what the trial court aptly characterized as the "largely incoherent assertions" of his unverified complaint. " 'An anti-SLAPP motion is an evidentiary motion.' [Citation.] Consequently, '[t]he prima facie showing of merit must be made with evidence that is admissible at trial. [Citation.] Unverified allegations in the pleadings or averments made on information and belief cannot make the showing.' " (Contreras v. Dowling (2016) 5 Cal.App.5th 394, 405.) Because Mardeusz made no attempt to make a prima facie showing of merit, it is unnecessary to address the application of the litigation privilege as an affirmative defense. B. Additional Arguments
"The [Civil Code] section 47[, subdivision] (b) privilege precludes civil liability, except for malicious prosecution, for '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. [Citations.]' [Citation.] 'This privilege is absolute in nature, applying "to all publications, irrespective of their maliciousness." ' " (Cabral v. Martins, supra, 177 Cal.App.4th at p. 485.)
Respondents also contend Mardeusz cannot prevail on the merits because he lacks standing to assert at least some of the claims presented in his complaint. Respondents are correct that Mardeusz has no standing to assert claims against any of the attorney defendants for professional negligence, because there was no attorney-client relationship and he pleads no facts establishing any professional duty to him. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 344-345.)
Respondents further assert Mardeusz lacks standing generally to pursue any of the causes of action in his complaint because he does not allege any beneficial interest in the property. Instead, he alleges only a "mutually beneficial contract" with Mazzaferro "to preserve, protect, defend, and maintain" the Property. While we doubt this alleged contract establishes an interest sufficient to permit Mardeusz to assert claims for purported damage to the Property, we have no need to explore the question here in light of our prior rulings. C. Monetary Sanctions
Respondents have moved for imposition of monetary sanctions against Mardeusz for pursuit of a frivolous appeal. We grant the motion. We also issued our own order to show cause to Mardeusz, advising him that we were considering the imposition of sanctions payable to the court. We now impose such sanctions.
We grant Bradlow, Oliner, and Fischer's May 8, 2018 request for judicial notice of Mardeusz's post-appeal conduct in the trial court. --------
"California Rules of Court, rule 8.276(e)(1) allows the court to impose sanctions on a party or an attorney for the taking of a frivolous appeal or appealing solely to cause delay. An appeal is frivolous 'only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]' [Citation.] The first standard is tested subjectively. The focus is on the good faith of appellant and counsel. The second is tested objectively. [Citation.] 'While each of the above standards provides independent authority for a sanctions award, in practice the two standards usually are used together "with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay." ' " (In re Marriage of Gong & Kwong, supra, 163 Cal.App.4th at p. 516.)
Objectively, the appeal is without merit, as evidenced by the "largely incoherent" assertions of the complaint on which Mardeusz continues to rely here, Mardeusz's failure to present any reasoned challenge to the motion to strike, and the rambling and disjointed brief submitted by Mardeusz in this court. As we have noted, the majority of Mardeusz's brief makes impermissible collateral attacks on the receivership orders, and he made no effort to comply with section 568. Subjectively, we consider not only the lack of merit in the appeal, but Mardeusz's concurrent and persistent efforts to interfere with the authority of the receiver. In the present action, Mardeusz attempted, while the anti-SLAPP motion to strike/dismiss was pending, to file an unauthorized first amended complaint, seeking to name as defendants three judicial officers, a clerk of the trial court, and the proposed purchaser of the Property. He apparently recorded a document purportedly "negating" the order of the trial court granting the receiver's motion for approval of sale of the Property, and he threatened to initiate an involuntary bankruptcy proceeding against the proposed purchaser of the Property. He initiated, and then dismissed, two pro se actions against Fischer in the San Francisco Superior Court: (1) an unlawful detainer action was filed on January 23, 2017, and dismissed on January 27, 2017; and (2) a complaint for ejectment was filed on January 27, 2017, and dismissed on April 19, 2017, prior to the scheduled hearing on a demurrer filed by Fischer. The evidence amply supports our conclusion that Mardeusz has pursued this appeal in bad faith, for purposes of harassment and to delay or prevent sale of the Property.
Monetary sanctions are appropriate. "Factors relevant to determining the amount of sanctions to be awarded a party responding to a frivolous appeal include 'the amount of respondent's attorney fees on appeal; the amount of the judgment against appellant; the degree of objective frivolousness and delay; and the need for discouragement of like conduct in the future.' " (In re Marriage of Gong & Kwong, supra, 163 Cal.App.4th at p. 519.) Counsel for the receiver avers that the receiver has incurred fees and cost in excess of $200,000, excluding cost of unlawful detainer counsel, and fees of $11,900 in a motion to dismiss this appeal. These fees and costs deplete a conservatorship estate to the detriment of the developmentally disabled beneficiary. "In those cases where such abuse is present, an award of substantial sanctions is proper." (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 526.) We therefore award to respondent Bradlow, in addition to the attorney fees payable under the anti-SLAPP statute, the sum of $20,000 as sanctions against appellant Mardeusz.
We also find it appropriate to impose sanctions to be paid directly to the clerk of this court. (Cal. Rules of Court, rule 8.276.) " '[T]he appellate system and the taxpayers of this state are damaged by what amounts to a waste of this court's time and resources. [Citations.] Accordingly, an appropriate measure of sanctions should . . . compensate the government for its expense in processing, reviewing and deciding a frivolous appeal." ' " (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1433; Pierotti v. Torian (2000) 81 Cal.App.4th 17, 35 ["[b]ecause a frivolous appeal, or one taken for improper reasons, harms the court, not just the respondent, a growing number of courts are ordering appellants to pay sanctions directly to the court clerk to compensate the state for the cost of processing such appeals"].) A number of Court of Appeal decisions have adopted figures of $5,900 to $6,000 as a conservative estimate of the costs of processing an average appeal, basing those figures on a calculation made in 1992. (See, e.g., Pollock, at p. 1434; Pierotti, at p. 36; Cohen v. General Motors Corp. (1992) 2 Cal.App.4th 893, 897.) We conclude that sanctions of $6,000, payable by Mardeusz to the clerk of this court, are appropriate. D. Vexatious litigant
Respondents ask that we declare Mardeusz a vexatious litigant. As relevant here, section 391, subdivision (b) provides that an individual may be declared a vexatious litigant if that person "[i]n any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay." (§ 391, subd. (b)(3).) Once a person has been declared a vexatious litigant, the court, on its own or a party's motion, may "enter a prefiling order which prohibits [the person] from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed." (§ 391.7, subd. (a); Shalant v. Girardi (2011) 51 Cal.4th 1164, 1170.) "The vexatious litigant statutes ([§ 391 et seq.]) are designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants." (Shalant, at p. 1169.) In determining that monetary sanctions were appropriate in this matter, we reviewed Mardeusz's conduct in filing unmeritorious pleadings, and his engagement in other tactics that are frivolous or solely intended to cause unnecessary delay. We declare Mardeusz to be a vexatious litigant.
III. DISPOSITION
The judgment of dismissal is affirmed. Respondents shall recover their costs on appeal (Cal. Rules of Court, rule 8.278(a)(1), (2)), including attorney fees incurred in connection with this appeal (§ 425.16, subd. (c)(1)) in an amount to be determined by the trial court.
We award sanctions payable by Mardeusz to respondent David Bradlow, as court appointed receiver, in the amount of $20,000. We further impose sanctions, payable by Mardeusz to the clerk of this court, in the amount of $6,000. Sanctions are to be paid within thirty (30) days of finality of this opinion.
The clerk of this court is directed to advise the Judicial Council of California of the designation of appellant Frank Mardeusz as a vexatious litigant.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.