Opinion
D077331
08-17-2022
JOSEPHINE S. NORTON et al., as Trustees, etc., Plaintiffs, Cross-defendants and Appellants, v. NENA JO HASKINS, Defendant, Cross-complainant, and Appellant.
Law Offices of Murray M. Helm, Jr., Murray M. Helm, Jr., and Mark A. Maasch for Plaintiffs, Cross-defendants, and Appellants. David A. Kay for Defendant, Cross-complainant and Appellant.
NOT TO BE PUBLISHED
APPEALS from judgment and orders of the Superior Court of San Diego County No. 37-2018-00016874-CU-OR-CTL Joel R. Wohlfeil, Judge. Judgment affirmed; appeals of orders dismissed in part, reversed in part and remanded with directions.
Law Offices of Murray M. Helm, Jr., Murray M. Helm, Jr., and Mark A. Maasch for Plaintiffs, Cross-defendants, and Appellants.
David A. Kay for Defendant, Cross-complainant and Appellant.
O'ROURKE, ACTING P. J.
INTRODUCTION
Deane Haskins (Deane), now deceased, and his wife, Nena Jo Haskins (Haskins), borrowed $80,000 and encumbered their Tattersall property with a trust deed to secure the loan. During their marital dissolution proceedings, Deane transferred his interest in the Tattersall property to Haskins, and Haskins accepted the financial obligations related to that property.
Thereafter, Deane and Haskins were unable to pay off their $80,000 loan by its due date. Deane, an attorney, solicited and obtained a loan from his client, Josephine Norton (Norton), in the amount of $90,000, which funds he deposited into his joint bank account with Haskins, and then he withdrew sufficient funds to pay off the $80,000 loan and obtained a reconveyance of related trust deed on the Tattersall property. Deane told Norton that he needed the funds to pay off a loan that a friend had made to him and assured her that he and his wife had listed their Tattersall property for sale and could repay her soon from the sale proceeds. Deane signed a promissory note (Note) in the amount of $90,000, payable to Norton. However, Deane did not provide Norton with a trust deed on the Tattersall property to secure the Note. Deane subsequently passed away and no further payments were made on the Note.
On August 3, 2022, we granted the motion filed by plaintiff, cross-defendant and appellant Josephine S. Norton to substitute Josephine S. Norton and Marilyn N. Orr, trustees of the Norton Family Trust dated January 30, 1980, as amended, in her place and stead, pursuant to California Rules of Court, rule 8.36(a). That motion was filed after briefing and oral argument in this appeal was complete. For the sake of clarity and symmetry with the trial court and appellate briefing, our references to Norton throughout this opinion refer to either Josephine S. Norton or the interest held by Josephine S. Norton and Marilyn N. Orr, trustees of the Norton Family Trust dated January 30, 1980, as amended, as appropriate in context. (See Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 506, fn. 1.)
Norton filed the instant action against Haskins, Deane's estate, and Deane's law practice, seeking repayment of the Note. At the bench trial, Norton alleged causes of action for: (1) equitable mortgage; (2) unjust enrichment; and (3) equitable subrogation. Norton argued at trial that Haskins was aware of the Note and/or that Deane used its proceeds to pay off the $80,000 loan and obtain the reconveyance of the related trust deed on the Tattersall property to Haskins's benefit. Norton argued that Haskins was unjustly enriched by Deane's use of the Note proceeds to pay off the $80,000 loan and obtain the reconveyance of the trust deed and requested that the court grant her an equitable mortgage on the Tattersall property in the amount of the unpaid balance of the Note.
The trial court found in Norton's favor on her equitable mortgage and unjust enrichment causes of action and then offset the amount of that equitable mortgage by the amount of the settlement payment she had received from Deane's malpractice insurer.
In her appeal, Haskins contends the court: (1) erred by granting Norton an equitable mortgage on the Tattersall property; and (2) abused its discretion by admitting parol evidence that conflicted with the provisions of the Note.
In her cross-appeal, Norton contends the court: (1) erred by granting Haskins's request for an offset to Norton's equitable mortgage in the full amount of the settlement payment that she received from Deane's malpractice insurer; (2) abused its discretion by denying her equitable subrogation cause of action; (3) erred by denying her anti-SLAPP motion to strike Haskins's first amended cross-complaint and her related request for attorney fees and costs; and (4) abused its discretion by granting Haskins's motion to expunge Norton's lis pendens recorded on the Tattersall property and awarding Haskins her related attorney fees and costs.
As explained below, we conclude the trial court did not abuse its equitable powers in awarding Norton an equitable mortgage on the Tattersall property. We further conclude the court did not abuse its discretion by offsetting the amount of that equitable mortgage by the full amount of the insurance settlement payment that Norton received. However, we conclude the court erred by denying Norton's anti-SLAPP motion and therefore remand that matter with directions for it to issue a new order granting that motion and awarding Norton her related attorney fees and costs. Finally, we dismiss Norton's appeal of the order granting Haskins's motion to expunge the lis pendens recorded by Norton.
FACTUAL AND PROCEDURAL BACKGROUND
On December 26, 2012, Deane and Haskins borrowed $80,000 from Richard and Jane Haskel (Haskels), signing a note and a third trust deed encumbering their Tattersall property. Prior to that note and trust deed, Deane and Haskins had entered into a marital settlement agreement (MSA) on October 16, 2012, and filed a petition for dissolution of their marriage on or about December 1, 2012. The MSA did not address the Tattersall property.
On April 2, 2013, Deane and Haskins signed an agreement providing that their jointly-owned Tattersall property and two other properties would be Haskins's separate property. On June 25, Deane signed an interspousal deed, transferring his interest in the Tattersall property to Haskins. In receiving Deane's interests in those properties, Haskins apparently accepted the financial obligations and liabilities related to those properties. On August 30, a judgment was entered dissolving the marriage of Deane and Haskins.
Thereafter, apparently having financial problems, Deane and Haskins were unable to pay off the Haskels' note by its due date (i.e., December 26, 2013). On January 27, 2014, Deane solicited and obtained a loan from Norton, his elderly client, in the amount of $90,000, the funds from which he deposited into a joint bank account in the names of Deane and Haskins, and then Deane gave the Haskels a check drawn on that account in an amount sufficient to pay off their note and obtained a reconveyance of the third trust deed on the Tattersall property. At that time, Deane was suffering from Parkinson's disease. Deane told Norton that he needed the funds to pay off a $80,000 loan that a "tennis friend" had given him and was now demanding payment on. Deane told Norton that he and his wife had listed their Fairbanks Ranch area home (i.e., the Tattersall property) for sale and assured Norton that he could soon repay her loan from the sale proceeds.
On February 1, 2014, Deane signed the Note in the amount of $90,000, payable to Norton. However, Deane did not provide Norton with a trust deed on the Tattersall property to secure the Note. Deane made monthly payments on the Note through January 2015 and thereafter made no further payments. On December 27, 2017, Deane passed away.
In April 2018, Norton filed the instant action against Haskins, Deane's estate, and Deane's law practice, seeking repayment of the Note. At the time of the bench trial in 2019, Norton alleged the following three operative causes of action: (1) equitable subrogation (sixth cause of action); (2) equitable mortgage (seventh cause of action); and (3) unjust enrichment (ninth cause of action). Norton's trial theory was that Haskins was aware of the Note and/or that Deane used its proceeds to pay off the Haskels' note and the third trust deed on the Tattersall property (which Haskins then solely owned) and, even if she was not aware of Deane's actions, Haskins benefited by Deane's payment of the Haskels' note and the related reconveyance of the third trust deed on the Tattersall property (i.e., because it reduced the amount of the encumbrances on her Tattersall property and, thus, increased Haskins' net equity in that property). Norton argued in closing that Haskins was unjustly enriched by Deane's use of Norton's loan to pay off the Haskels' note, which resulted in the reconveyance of the third trust deed, to Haskins' benefit. Because of that unjust enrichment, Norton requested that the court grant her, inter alia, an equitable mortgage on the Tattersall property in the amount of the unpaid balance of the Note.
On December 19, 2019, the trial court issued a statement of decision, finding in Norton's favor on her causes of action for equitable mortgage and unjust enrichment, but offset the amount of that equitable mortgage by the $22,500 settlement amount Norton received from Deane's malpractice insurer. The court denied Norton's cause of action for equitable subrogation. On March 13, 2020, the court entered its judgment for Norton. On September 8, 2020, the court entered an amended judgment, adding its award to Norton of her trial costs.
Haskins timely filed an appeal challenging the judgment. Norton timely filed a cross-appeal, challenging the judgment and certain orders issued by the court.
DISCUSSION
HASKINS'S APPEAL
I
Award of Equitable Mortgage to Norton
Haskins contends the court erred by granting Norton an equitable mortgage on the Tattersall property.
A
Equitable principles originated "in the necessity for exceptions to the application of rules of law in those cases where the law, by reason of its universality, would create injustice in the affairs of men." (In re Estate of Lankershim (1936) 6 Cal.2d 568, 572-573.) "The object of equity is to do right and justice." (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 770 (Hirshfield).) Courts of equity mold and adjust their decrees to award substantial justice in the circumstances of matters within their jurisdiction. (Ibid.; Times-Mirror Co. v. Superior Court of Los Angeles County (1935) 3 Cal.2d 309, 331 (Times-Mirror Co.).) "The powers of a court of equity, dealing with the subject-matters within its jurisdiction, are not cribbed or confined by the rigid rules of law. From the very nature of equity, a wide play is left to the conscience of the chancellor in formulating his decrees. ... It is of the very essence of equity that its powers should be so broad as to be capable of dealing with novel conditions. [Citation.]" (Bechtel v. Wier (1907) 152 Cal. 443, 446 (Bechtel).) "[T]he granting or withholding of equitable relief involves the exercise of judicial discretion." (Fairchild v. Raines (1944) 24 Cal.2d 818, 826; see also Hicks v. Clayton (1977) 67 Cal.App.3d 251, 265 ["[T]he propriety of granting equitable relief in a particular case . . . generally rests upon the sound discretion of the trial court exercised in accord with the facts and circumstances of the case [citations]."].)
In Grappo v. Coventry Financial Corporation (1991) 235 Cal.App.3d 496 (Grappo), the court stated:
"In general, equity will create a lien on property where this is necessary to accomplish substantial justice and protect creditors. Thus, courts will construe the existence of equitable liens . . . where, despite the lack of any formal mortgage or deed of trust it is apparent that the parties intended to create a security interest in property [citations]; where the parties have otherwise clearly attempted or intended to make real property security for an obligation [citations]; or, even in the absence of any agreement, where it is necessary to prevent unjust enrichment [citations]." (Grappo, supra, 235 Cal.App.3d at p. 509, italics added.)
For example, courts may exercise their equitable powers to create an equitable mortgage where the parties intended that certain debt be secured by real property, but erroneously described the property in their trust deed. (Clayton Dev. Co. v. Falvey (1988) 206 Cal.App.3d 438, 443-444; see also, Kaiser Industries Corp. v. Taylor (1971) 17 Cal.App.3d 346, 350-353; Coast Bank v. Minderhout (1964) 61 Cal.2d 311, 313-314 (Coast Bank); Higgins v. Manson (1899) 126 Cal. 467, 469-470.) "An 'equitable mortgage' is one that is created by a court of equity rather than by the formal act of the parties. Under certain circumstances, the court determines that equity, fairness, and justice warrant enforcement of a security interest between the parties despite the fact that no formal mortgage was created or that an attempted creation was defective." (5 Miller & Starr, Cal. Real Estate (4th ed. 2016) § 13:31.) Courts may exercise their powers in equity to create a lien on property" 'as a desirable remedy though the parties did not in fact intend to make the property security for an obligation; e.g.[,] where the object is to prevent unjust enrichment. [Citations.]' [Citation.]" (Jones v. Sacramento Sav. & Loan Asso. (1967) 248 Cal.App.2d 522, 529 (Jones).) "A general doctrine of equity permits imposition of an equitable lien where the claimant's expenditure has benefited another's property under circumstances entitling the claimant to restitution. [Citations.]" (Id. at p. 530.)" 'Where property of one person can by a proceeding in equity be reached by another as security for a claim on the ground that otherwise the former would be unjustly enriched, an equitable lien arises.'" (County of Los Angeles v. Construction Laborers Trust Funds for Southern California Admin. Co. (2006) 137 Cal.App.4th 410, 416, fn. 5 (County of Los Angeles).) "The equity courts look with favor upon equitable liens, and frequently such liens are employed to do justice and equity and to prevent unfair results. [Citations.]" (Wagner v. Sariotti (1943) 56 Cal.App.2d 693, 698 (Wagner).)
The equitable doctrine of unjust enrichment will support an award of restitution or other equitable relief in appropriate circumstances." 'The right to restitution ... is based upon unjust enrichment. Where a person obtains a benefit that he or she may not justly retain, the person is unjustly enriched. The . . . obligation [is] . . . created by the law without regard to the intention of the parties, and is designed to restore the aggrieved party to his or her former position by return of the thing or its equivalent in money. [Citations.]' [Citation.]" (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 639 (Unilab Corp.).) "The elements of a cause of action for unjust enrichment are simply stated as 'receipt of a benefit and unjust retention of the benefit at the expense of another.' [Citations.]" (Professional Tax Appeal v. Kennedy-Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230, 238 (Professional Tax Appeal).) "The fact that one person benefits another is not, by itself, sufficient to require restitution. The person receiving the benefit is required to make restitution only if the circumstances are such that, as between the two individuals, it is unjust for the person to retain it. [Citation.]" (First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1663 (First Nationwide Savings).) "Benefit means any type of advantage." (Id. at p. 1662.) For a benefit to be conferred, it is not essential that money be paid directly to the recipient of a benefit, but may be conferred when a person saves the recipient from expense or loss. (Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 51 (Ghirardo); County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1278 (County of Solano).)
On appeal, we review a trial court's exercise of its equitable powers for an abuse of discretion. (Branscomb v. JPMorgan Chase Bank, N.A. (2014) 223 Cal.App.4th 801, 806 (Branscomb); Hirshfield, supra, 91 Cal.App.4th at p. 771; City of Barstow v. Mojave Water Agency (2000) 23 Cal.4th 1224, 1256.) In so doing, we resolve all evidentiary conflicts in favor of the judgment and determine whether the court's decision falls within the permissible range of options set by applicable legal criteria. (Hirshfield, at p. 771.)
B
In its statement of decision, the trial court found that Norton was entitled to an equitable mortgage in the amount of $84,516.25 against the Tattersall property. The court stated: "[B]etween, [Norton] and [Haskins], the Court finds that [Haskins] unjustly benefitted from the use of [Norton's] loan to pay off the Haskel[] [t]rust [d]eed . . . ." The court focused on the enrichment of Haskins as a result of the payoff of the Haskel trust deed, noting that she had a "plausible economic motivation to pay off the Haskel[] [t]rust [d]eed" and "foresaw the prospective value in the Tattersall. . . property." The court further found that Haskins's 2017 representation of responsibility in accepting Deane's transfer of his interest in the Tattersall property "encompass[ed] repayment of [Norton's] loan to extinguish the Haskel[] [t]rust [d]eed on the Tattersall. . . property."
After granting Haskins's request for an offset of $22,500 for Norton's receipt of insurance settlement proceeds, the court found Norton was entitled to an equitable mortgage against the Tattersall property in the net amount of $62,016.25, which award it subsequently made in the judgment.
C
Contrary to Haskins's argument, we conclude that the trial court did not abuse its broad discretion by awarding Norton an equitable mortgage against the Tattersall property. As the court found, Norton loaned money to Deane, who used the money to pay off the Haskel loan and thereby "extinguish" (i.e., obtain the reconveyance of) the Haskel trust deed encumbering the Tattersall property. The court found that Haskins, as the then sole owner of the Tattersall property, benefited from the payoff of the Haskel loan and reconveyance of the Haskel trust deed. The court implicitly found that Haskins received a benefit from the payoff of the Haskel loan, which resulted in lesser encumbrances on her Tattersall property and thus an increase in her net equity in that property. Exercising its equitable powers, the court then concluded that, as between Haskins and Norton, Haskins should not justly retain that benefit. (First Nationwide Savings, supra, 11 Cal.App.4th at pp. 1662-1663; Ghirardo, supra, 14 Cal.4th at p. 51; County of Solano, supra, 75 Cal.App.4th at p. 1278.) Alternatively stated, the court found, in effect, that Haskins received a benefit from Norton's loan to Deane and should not justly retain that benefit at Norton's expense. (Professional Tax Appeal, supra, 29 Cal.App.5th at p. 238.) Because it found
Haskins had been unjustly enriched at Norton's expense, the court could reasonably fashion an equitable remedy to restore Norton to her former position by returning to her the equivalent of the money that she had loaned to Deane and was used to pay off the Haskel trust deed. (Unilab Corp., supra, 244 Cal.App.4th at p. 639.)
In the circumstances of this case, we conclude the court reasonably exercised its discretion by choosing the equitable remedy of an equitable mortgage against the Tattersall property to restore Norton to her former position. By awarding Norton an equitable mortgage on the Tattersall property, the court, exercising its broad powers in equity, reasonably molded or formulated its decree to award substantial justice to her in the novel circumstances of this case. (Hirshfield, supra, 91 Cal.App.4th at p. 770; Times-Mirror Co., supra, 3 Cal.2d at p. 331; Bechtel, supra, 152 Cal. at p. 446.) As discussed above, to prevent unjust enrichment, a court may create an equitable lien or mortgage on property held by a person who has been unjustly benefited. (County of Los Angeles, supra, 137 Cal.App.4th at p. 416, fn. 5; Grappo, supra, 235 Cal.App.3d at p. 509; Jones, supra, 248 Cal.App.2d at p. 529; Wagner, supra, 56 Cal.App.2d at p. 698.) "A general doctrine of equity permits imposition of an equitable lien [or mortgage] where the claimant's expenditure has benefited another's property under circumstances entitling the claimant to restitution. [Citations.]" (Jones, at p. 530.) Here, by awarding Norton an equitable mortgage against the Tattersall property owned by Haskins, we conclude the court did not abuse its broad powers in equity. (Branscomb, supra, 223 Cal.App.4th at p. 806; Hirshfield, at p. 771.)
D
None of the cases cited by Haskins are apposite to this case or otherwise persuade us that the court abused its discretion by awarding Norton an equitable mortgage on the Tattersall property. Most of her cited cases involve circumstances in which the parties intended to create a trust deed or mortgage, but defectively or invalidly attempted to do so. (See, e.g., Burns v. Peters (1936) 5 Cal.2d 619; Coast Bank, supra, 61 Cal.2d 311; McColgan v. Bank of California Association (1929) 208 Cal. 329; Estate of Pitts (1933) 218 Cal. 184; Lentz v. Lentz (1968) 267 Cal.App.2d 891; cf. Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11.) The fact that there are many cases in which equitable liens or mortgages have been awarded based on the parties' intent is not surprising, as those cases presumably involve the most commonly occurring circumstances in which equitable liens or mortgages are deemed to be appropriate equitable relief. However, contrary to Haskins' apparent argument, the award of equitable liens or mortgages is not necessarily limited to such circumstances. As discussed above, courts may also deem equitable liens or mortgages to be appropriately awarded in circumstances involving unjust enrichment, without regard to any intent by the parties to create a trust deed or mortgage. (See, e.g., Grappo, supra, 235 Cal.App.3d at p. 509; Jones, supra, 248 Cal.App.2d at pp. 529-530; County of Los Angeles, supra, 137 Cal.App.4th at p. 416, fn. 5.) To the extent statements in Grappo and Jones, quoted above, that equitable liens may be necessary to avoid unjust enrichment are dictum, as Haskins asserts, that dictum was nevertheless an accurate statement of the law of equity and therefore does not undermine our conclusion that the court did not abuse its discretion by awarding Norton an equitable mortgage on the Tattersall property. Haskins does not cite any case holding, and does not otherwise persuade us, that equitable liens and mortgages may be awarded only when the parties had the intent to create a trust deed or mortgage and cannot be awarded in other circumstances to prevent unjust enrichment regardless of any intent to create a trust deed or mortgage. Contrary to Haskins's argument, the court was not required to find Norton had bargained for, or had a reasonable expectation of receiving, a trust deed on the Tattersall property in making her loan to Deane before it could find Haskins would be unjustly enriched if Norton were not awarded an equitable mortgage on that property.
Likewise, Haskins's argument that the unjust enrichment cases cited by the trial court are factually inapposite to this case does not show the court abused its discretion by finding Haskins would be unjustly enriched if Norton were not awarded an equitable mortgage in the circumstances of this case. (See, e.g., County of Solano, supra, 75 Cal.App.4th 1262; Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583; Lectrodryer v. Seoul Bank (2000) 77 Cal.App.4th 723.) Furthermore, contrary to Haskins's assertion, wrongful or unjust behavior is not a prerequisite to a finding of unjust enrichment. Rather, in certain factually inapposite cases cited by Haskins, the wrongful or unjust behavior noted by the courts was merely an additional circumstance warranting their finding of unjust enrichment. (See, e.g., Lectrodryer, at p. 726; City of San Bernardino v. Walsh (2007) 158 Cal.App.4th 533, 542.) Also, to the extent Haskins argues that unjust enrichment is not considered an independent cause of action under California law, there is a split of authority among the appellate courts on that question. (See, e.g., Melchior v. New Line Productions Inc. (2003) 106 Cal.App.4th 779, 793 [no cause of action for unjust enrichment]; McBride v. Boughton (2004) 123 Cal.App.4th 379, 387 [same]; Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370 [same]; cf. Professional Tax Appeal, supra, 29 Cal.App.5th at p. 238 [cause of action exists for unjust enrichment]; FDIC v. Dintino (2008) 167 Cal.App.4th 333, 346-347 [same]; Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1132 [same].) Nevertheless, as Norton notes, the California Supreme Court has implicitly, if not expressly, recognized a cause of action for unjust enrichment. In Ghirardo, supra, 14 Cal.4th 39, the court stated: "Antonioli was . . . entitled to seek relief under traditional equitable principles of unjust enrichment." (Id. at p. 50.) Regardless of whether a cause of action exists for unjust enrichment, the court here could nevertheless make a finding in the circumstances of this case that Haskins would be unjustly enriched if she were to retain the benefit she received from Norton's loan and the resultant reconveyance of the Haskel trust deed on the Tattersall property and, based thereon, find in favor of Norton on her cause of action for an equitable mortgage against the Tattersall property. By so finding, the court used its finding of unjust enrichment as a circumstance warranting its award of an equitable mortgage to Norton.
Likewise, Haskins's knowledge of Norton's loan that was used to pay off the Haskel trust deed also was not a prerequisite to the court's finding that Haskins was unjustly enriched by Norton's loan. (Cf. Pellerito v. Dragna (1940) 41 Cal.App.2d 85, 90 ["The fact as to whether or not [the appellant] had knowledge of the supplying of funds by [the] respondents and of the accompanying promise of [the appellant's husband] is immaterial [as to whether equity should intervene]."].)
Finally, Haskins argues that under Civil Code section 3432 Deane had the right to spend or otherwise use the proceeds of Norton's loan to him on any legitimate debt and therefore he had no obligation to ensure that Norton would be repaid in preference to another creditor. Assuming arguendo Deane had that right, it does not show that the court abused its discretion by awarding Norton an equitable mortgage against the Tattersall property in order to avoid Haskins's unjust enrichment from Norton's loan to Deane. Contrary to Haskins's apparent argument, Civil Code section 3432 was wholly inapplicable to the court's determination of Norton's equitable causes of action in the circumstances of this case. Accordingly, we conclude that Haskins has failed to carry her burden on appeal to show the court abused its discretion by awarding Norton an equitable mortgage on the Tattersall property in the amount of $62,016.25.
Civil Code section 3432 provides: "A debtor may pay one creditor in preference to another, or may give one creditor security for the payment of his demand in preference to another."
The various hypothetical examples that Haskins poses in support of her contention are all factually inapposite to this case and do not appear to involve unjust enrichment and therefore do not warrant further discussion. Accordingly, they do not persuade us the court abused its discretion by awarding Norton an equitable mortgage on the Tattersall property in the circumstances of this case.
II
Admission of Parol Evidence
Haskins contends the trial court abused its discretion by admitting parol, or extrinsic, evidence offered by Norton in support of her equitable causes of action, which evidence conflicted with the provisions of the Note.
A
At trial, Haskins objected to the admission of parol, or extrinsic, evidence offered by Norton that would contradict the terms and conditions of the Note, citing its integration provision. The trial court overruled Haskins's objection and admitted extrinsic evidence regarding the circumstances of Norton's loan of money to Deane, such as his declaration explaining the reasons for Norton's loan.
The Note provided in part: "This Note constitutes the parties' entire agreement with respect to the subject matter hereof and supersedes and replaces all agreements, statements and understandings, whether oral or written, with respect to the subject matter hereof. This Note may not be amended, altered or modified except by a writing signed by the parties. [If] • • • [If] No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement [sic] will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy . . . ."
B
Citing Code of Civil Procedure section 1856, Haskins contends the court abused its discretion by admitting extrinsic evidence regarding Norton's loan to Deane. Section 1856 provides: "Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to the terms included therein may not be contradicted by evidence of a prior agreement or of a contemporaneous oral agreement."
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
However, by so arguing, Haskins does not show the court abused its discretion by admitting Norton's extrinsic evidence as relevant to prove her equitable causes of action and not to contradict the terms of the Note. As Norton notes, none of her causes of action sought to hold Haskins liable on the Note (e.g., for breach of contract). Rather, Norton's causes of action sought, inter alia, an award of an equitable mortgage on the Tattersall property in order to avoid Haskins's unjust enrichment from Norton's loan to Deane. Accordingly, we conclude the court could reasonably conclude that Norton properly sought admission of extrinsic evidence regarding the circumstances of Norton's loan to Deane and not to contradict the terms of the Note.
Haskins does not cite, and we are unaware of, any case holding that the admission of extrinsic evidence for purposes other than to contradict the terms of an integrated written agreement violates Civil Code section 1856. In particular, Haskins does not cite any case in support of her conclusory assertion that "it would be a violation of the parol evidence rule to allow evidence concerning a possible equitable mortgage, which would be the same as a formal trust deed." Coast Bank, supra, 61 Cal.2d 311, cited by Haskins, is factually inapposite to this case and does not stand for the proposition she asserts. Contrary to Haskins's assertion, that case does not hold that extrinsic evidence may be admitted to prove an equitable mortgage cause of action only if that evidence is offered to interpret, and not contradict, documents that were intended to create a security interest. As discussed above, Norton's trial theory was not that her loan to Deane was intended to create a security interest in the Tattersall property, but was instead that Haskins would be unjustly enriched by Norton's loan unless Norton were awarded an equitable mortgage on that property. Accordingly, we are unpersuaded by Haskins's argument that the court abused its discretion by admitting Norton's extrinsic evidence regarding the circumstances of her loan to Deane as relevant to prove her equitable causes of action.
C
In any event, assuming arguendo that the court abused its discretion by admitting Norton's extrinsic evidence, we nevertheless conclude that Haskins has not carried her burden on appeal to show that error was prejudicial. No judgment may be reversed for an erroneous admission or exclusion of evidence unless the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, §§ 353, 354.) The appellant has the burden on appeal to affirmatively show that an asserted error was prejudicial and requires reversal of the judgment. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069 (Pool).) A miscarriage of justice is found only when the appellant shows that" 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 (Cassim); see also People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Haskins apparently argues the judgment against her must be reversed simply because the court purportedly abused its discretion by admitting Norton's extrinsic evidence (i.e., per se reversible error). In so doing, she does not argue, much less show, that it is reasonably probable that she would have obtained a more favorable result at trial had the court excluded that evidence. Accordingly, she has failed to carry her burden on appeal to show that the purported error was prejudicial and requires reversal of the judgment. (Pool, supra, 42 Cal.3d at p. 1069; Cassim, supra, 33 Cal.4th at p. 800.)
NORTON'S CROSS-APPEAL
III
Offset for Settlement Payment
In her cross-appeal, Norton contends the court erred by granting Haskins's request for an offset to Norton's equitable mortgage in the full amount of the settlement payment that she received from Deane's malpractice insurer.
A
In her closing argument at trial, Haskins argued that if the court were to grant Norton relief on her causes of action, that she (Haskins) should receive an offset in the full amount of the $22,500 settlement payment that Norton received from Deane's legal malpractice insurer. In her rebuttal argument, Norton argued that if the court were to award her an equitable mortgage against the Tattersall property, the court should not grant Haskins any offset for the amount of the $22,500 settlement payment that she received from Deane's legal malpractice insurer, arguing that payment "had nothing to do with what we're here for today." The court rejected that argument, stating: "The whole action appears to be integrated and revolving around the $90,000 loan." Norton replied: "This is about the $90,000 loan, but we do not believe there should be any offset because the money wasn't paid for the $90,000. It was paid for [Deane's] legal malpractice." Norton further argued her $90,000 loan was "not a covered provision under [the insurer's] policy."
In its statement of intended decision, the court tentatively decided to award Norton an equitable mortgage against the Tattersall property in the amount of $84,516.25 and grant Haskins's request for an offset for the $22,500 settlement payment that Norton received from Deane's legal malpractice insurer, thereby reducing the amount of Norton's equitable mortgage to $62,016.25. The court subsequently heard arguments on the parties' objections to its statement of intended decision. Norton objected to the court's intended decision to grant Haskins an offset for the $22,500 settlement payment that she received, arguing that "there was no dollar amount given to the [insurer's] settlement [payment] of [$]22,500 to the $90,000 principal note." Norton also argued that the offset should be $17,637.18, instead of $22,500, to reflect the $4,862.82 payment on the Note from Deane's bank account, for a net equitable mortgage amount of $66,879.09.
After hearing arguments, the court issued its statement of decision, finding that at the time of trial the remaining balance due on the Note was $84,516.25. Based thereon and its finding that Haskins was unjustly benefited from Deane's use of the proceeds from Norton's loan to pay off the Haskel note and trust deed, the court found Norton was entitled to an equitable mortgage in an amount of $84,516.25 against the Tattersall property. The court then considered Haskins's request under section 877 for an offset to the amount of that equitable mortgage in the full amount of the settlement payment that Norton received from Deane's legal malpractice insurer. The court found that Norton had received a settlement payment of $22,500 from Deane's insurer "to settle [Norton's] claim against Haskins and his [e]state." Accordingly, the court found Haskins was entitled to an offset of $22,500 against the balance due on the Note, which reduced the amount of Norton's equitable mortgage against the Tattersall property to $62,016,25.
B
Section 877 provides: "Where a release ... is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort. . ., it shall have the following effect: [¶] (a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release ... or in the amount of the consideration paid for it, whichever is the greater." In Dell'Oca v. Bank of New York Trust Co., N.A. (2008) 159 Cal.App.4th 531 (Dell'Oca), the court described the purposes underlying section 877, stating:
"Three interests are at work in section 877.' "First... is the maximization of recovery to the injured party for the amount of his injury to the extent fault of others contributed to it. . . . Second is encouragement of settlement of the injured party's claim. . . . Third is the equitable apportionment of liability among the tortfeasors."' [Citation.] It follows that the 'statute must be interpreted to allow the plaintiff full recovery to the extent that others are responsible for his injuries.' [Citation.] However, an additional purpose of the statute is to prevent double recovery for the same wrong. [Citation.]" (Dell'Oca, supra, 159 Cal.App.4th at p. 560, italics added.)
Section 877 has been construed as applying more generally to all tortfeasors joined in a single action whose acts or omissions concurred to produce the sum total of the injuries to the plaintiff. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1356 (Oliveira); Gackstetter v. Frawley (2006) 135 Cal.App.4th 1257, 1272 (Gackstetter).)
For example, in Kohn v. Superior Court (1983) 142 Cal.App.3d 323, the court concluded that section 877 applied to give certain codefendants an offset for settlement amounts paid by the other codefendants, rejecting the plaintiffs' argument that the settlement payments were not for the "same tort" (i.e., fraud versus failure to properly repair or inspect the property). (Kohn, at p. 328.) Kohn stated: "Here, there was but one injury, [the] purchase of a house which was worth less than plaintiffs believed. [Citation.] The alleged tortious activities by the contractor, pest control inspector and seller were not independent, but combined to create one indivisible injury which took place when the sale was consummated." (Id. at p. 329.)
In Oliveira, supra, 206 Cal.App.4th 1349, the court similarly concluded that the "alleged tortious activities, even to the extent labeled as different causes of action, were not independent. The purported actions . . . combined to create one indivisible injury . . . ." (Id. at p. 1357.) The court further concluded that both attorneys and nonattorneys can be tortfeasors claimed to be liable for the same tort within the meaning of section 877.6. (Oliveira, at p. 1359, citing Gackstetter, supra, 135 Cal.App.4th 1257.) In Gackstetter, the court concluded that the attorney and trustee both committed tortious acts that concurred to produce the sum total of the plaintiffs' injuries and therefore were joint tortfeasors within the meaning of section 877.6. (Gackstetter, at p. 1275.) Oliveira concluded: "[T]he key [to a section 877 offset] is that the tortious acts of the codefendants operate to produce a singular injury, irrespective of the legal theories on which the plaintiff bases his or her claims in framing the complaint." (Oliveira, at p. 1361.) Furthermore, citing the fundamental principle under section 877 against double recovery by a plaintiff for his or her injury, Oliveira stated: "The fact that legal professionals are involved as defendants does not change this principle. [Plaintiff] should not be permitted to obtain a double recovery just because of the identity of the defendants." (Oliveira, at p. 1361.)
A plaintiff has "the burden ... to show that [the defendant is] not entitled to a credit in the full amount of the settlements because some portion of the recovery should be allocated to other claims." (Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 1009 (John Crane).) Trial courts have wide discretion in allocating settlement payments. (Cf. Hellam v. Crane Co. (2015) 239 Cal.App.4th 851, 860 (Hellam); John Crane, at p. 1008 ["Trial courts generally have wide discretion in allocating prior settlement recoveries to claims not adjudicated at trial."].) Where, as here, the trial court was not asked to find that the settlement agreement was reached in good faith, it is not bound by any allocations made in the settlement agreement. (Hellam, at p. 869; John Crane, at p. 1009.) On appeal, we review a trial court's decision allocating a settlement payment among codefendants claimed to be liable for the same tort for purposes of offsets under section 877 for an abuse of discretion. (John Crane, at pp. 1006, 1011.)
C
In this case, we conclude the court did not abuse its discretion under section 877 by granting Haskins's request for an offset in the full amount of the $22,500 settlement payment that Norton received from Deane's malpractice insurer. In making its decision, the court expressly found that the $22,500 payment was made "to settle [Norton's] claim against Haskins and his [e]state." That finding appears to restate and confirm the court's initial statement at trial that "[t]he whole action appears to be integrated and revolving around the $90,000 loan." In so finding, the court presumably found that Norton had not carried her burden to prove that Haskins was not entitled to a credit in the full amount of the $22,500 settlement payment because some portion of that settlement payment should be allocated to other claims made by Norton against Deane's estate or law practice or his professional malpractice insurer. (John Crane, supra, 132 Cal.App.4th at p. 1009.)
Although Norton argues on appeal that some or all of the $22,500 settlement payment should have been allocated to other claims (e.g., malpractice and negligence claims against Deane), we conclude that the court reasonably found Norton did not prove her settlement with the malpractice insurer allocated any portion of the settlement payment to claims other than those related to her request for equitable relief based on her loan to Deane. In so finding, the court presumably sought to avoid awarding Norton a double recovery for her claims against the multiple defendants for the same wrong or injury. (DeU'Oca, supra, 159 Cal.App.4th at p. 560; Oliveira, supra, 206 Cal.App.4th at p. 1356; Gackstetter, supra, 135 Cal.App.4th at p. 1272.) By arguing that there was evidence that could have supported a contrary finding by the court (i.e., allocation of some or all of the $22,500 settlement payment to Norton's nonequitable claims for malpractice and negligence against Deane, such as for attorney fees incurred under the Note or in litigating her professional negligence claims), Norton misconstrues and/or misapplies the standard of review and fails to carry her burden on appeal to show the court abused its discretion by granting Haskins's request for an offset in the full amount of the $22,500 settlement payment. Accordingly, we uphold the court's grant of an offset to its award of an equitable mortgage against the Tattersall property in the full amount of the $22,500 settlement payment pursuant to section 877.
IV
Denial of Cause of Action for Equitable Subrogation
Norton contends the court abused its discretion by denying her equitable subrogation cause of action.
A
In her operative sixth cause of action for equitable subrogation, Norton alleged the same facts that supported her causes of action for equitable mortgage and unjust enrichment. Based on those facts, she alleged that she should be equitably subrogated to the rights of the prior Haskel trust deed, which was paid off using funds from her loan to Deane.
In its statement of decision, the court denied Norton's cause of action for equitable subrogation. The court explained that it was not persuaded that Norton, as a lender, understood that the purpose of her loan to Deane was to pay off the Haskel note and satisfy the Haskel trust deed on the Tattersall property and therefore that she was entitled to be equitably subrogated to the Haskel trust deed. Yet, the court found in Norton's favor on her causes of action for equitable mortgage and unjust enrichment. Accordingly, the court entered a judgment for Norton, declaring that she held an equitable mortgage secured by the Tattersall property in the amount of $62,016.25, plus interest as provided under the Note, which mortgage was senior to the interests of any other instrument recorded on that property after February 1, 2014. The judgment denied Norton's cause of action against Haskins for equitable subrogation.
B
Norton argues that her claim for equitable subrogation was one of three grounds on which she sought the imposition of an equitable lien against the Tattersall property. In arguing that the court abused its discretion by denying her equitable subrogation claim, Norton asserts the evidence clearly showed that she knew her loan proceeds were being used to pay off the Haskel note and trust deed, even though she did not know at that time the name of that existing lender. In support of her assertion, Norton cites to her trial testimony that Deane told her that he and his wife owned a Fairbanks Ranch house and had borrowed about $80,000 from a "tennis friend" who needed it to be repaid and asked her to lend him $90,000. Norton further testified that Deane told her that he and his wife had listed the property for sale and, when it sold, he would be able to repay her. Norton argues that the court erred by denying her equitable subrogation claim because the evidence showed she had made the loan for the specific purpose of paying off another loan and clearing up the title on the Fairbanks Ranch (i.e., Tattersall) property.
Assuming arguendo the court erred by denying Norton's cause of action for equitable subrogation, we nevertheless conclude Norton has failed to substantively argue, much less carry her burden on appeal to persuade us, that the court's error was prejudicial. As discussed above, no judgment may be reversed unless the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) The appellant has the burden on appeal to affirmatively show that an asserted error was prejudicial and requires reversal of the judgment. (Pool, supra, 42 Cal.3d at p. 1069; see also Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 308 (Citizens for Open Government) ["appellant bears the burden to show it is reasonably probable he or she would have received a more favorable result at trial had the error not occurred"].) A miscarriage of justice is found only when the appellant shows that" 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (Cassim, supra, 33 Cal.4th at p. 800; see also Watson, supra, 46 Cal.2d at p. 836.)
By not substantively arguing the purported error was prejudicial, Norton has forfeited her contention on appeal. (Molinaro v. Molinaro (2019) 33 Cal.App.5th 824, 829, fn. 4 [appellant "has made no attempt to show he was prejudiced by the exclusion of the testimony. He has forfeited the issue as a basis for appellate relief']; Citizens for Open Government, supra, 205 Cal.App.4th at p. 308.) "Issues do not have a life of their own: if they are not raised or supported by [substantive] argument or citation to authority, we consider the issues waived [or forfeited]." (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99; see also Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 ["When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary."].) In any event, assuming arguendo that Norton did not forfeit or waive her argument that the purported error was prejudicial, we nevertheless conclude she has not carried her burden on appeal to show prejudice from the purported error such that reversal of the judgment is required. (Pool, supra, 42 Cal.3d at p. 1069; Citizens for Open Government, at p. 308.)
Finally, we further note that because we affirm the judgment granting Norton equitable relief (i.e., equitable mortgage) as discussed above, we need not substantively address the trial court's decision to deny her alternative ground for equitable relief (i.e., equitable subrogation). (Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 513 ["one good reason is sufficient to sustain the order from which the appeal was taken"]; Filipino Accountants'Assn. v. State Bd. of Accountancy (1984) 155 Cal.App.3d 1023, 1029-1030 ["Ordinarily, when an appellate court concludes that affirmance of the judgment is proper on certain grounds it will rest its decision on those grounds and not consider alternative grounds which may be available."]; Coalition for L.A. County Planning etc. Interest v. Board of Supervisors (1977) 76 Cal.App.3d 241, 246 ["an appellate court will not ordinarily consider issues not necessary to its decision"].) Because Norton does not argue, much less show, that she would have received any greater relief at trial had the trial court granted her claim for equitable subrogation in addition to granting her claim for equitable mortgage, we need not, and do not, address her contention on appeal that the court erred by denying her claim for equitable subrogation because we affirm the judgment based on its award to Norton of an equitable mortgage on the Tattersall property.
V
Order Denying Norton's Anti-SLAPP Motion
Norton contends the trial court erred by denying her anti-SLAPP motion to Haskins's first amended cross-complaint and her related request for attorney fees and costs.
A
Relevant procedural background. In April 2018, Norton filed her complaint against Haskins and other defendants. In June 2019, Haskins filed a cross-complaint against Norton and other cross-defendants, but subsequently dismissed Norton as a cross-defendant. On September 13, following a bench trial on Norton's three remaining causes of action, the court issued its statement of intended decision in which it tentatively decided to award Norton an equitable mortgage in the amount of $62,016.25 against the Tattersall property that was solely owned by Haskins.
On October 11, Haskins filed her first amended cross-complaint, which added Norton as a cross-defendant. Although her first cause of action for contractual indemnity named only Deane's estate, and not Norton, as a cross-defendant, that cause of action alleged that Norton had filed an action against Haskins based on Norton's 2014 loan to Deane. Haskins sought indemnity from Deane's estate based on Norton's action against her, alleging Haskins "has been caused legal expense, costs, worry, aggravation, physical and emotional stress and heartache as a result of having to defend [Norton's] action and to prosecute this Cross-Complaint."
In her second cause of action for equitable indemnity and declaratory relief against Norton and other cross-defendants, Haskins incorporated by reference her previous allegations (including those alleged in her first cause of action) and then specifically alleged in paragraph 18 that Norton and the other cross-defendants knew that Deane had executed the Note to Norton in 2014, that Deane's estate breached the Note by failing to honor its terms, and that Norton and the other cross-defendants "had duties to [Haskins] to honor the terms of the [Note]. Specifically, [Norton, Deane's estate, and the other cross-defendants] each owed a duty of care to [Haskins] to not expose [Haskins] to potential liability under the [N]ote, because, among other things, [Haskins] was not the Maker of the [N]ote and was divorced from Deane [at] the time Deane signed it as Maker." In paragraph 19 of her second cause of action, Haskins alleged: "By virtue of [Norton's and the other cross-defendants'] . . . knowledge of these facts, in equity and good conscience each Cross-Defendant [e.g., Norton] should defend and indemnify [Haskins] herein. Tender of the underlying action [i.e., Norton's action against Haskins] is hereby made to each and every Cross-Defendant [e.g., Norton], along with a demand for defense and indemnity." (Italics added.) In paragraph 20, Haskins alleged: "[Haskins] has been caused legal expense, costs, worry, aggravation, physical and emotional stress and heartache as a result of having to defend this action [i.e., Norton's action against Haskins]." (Italics added.) In paragraph 21, Haskins alleged: "Cross-Defendants [i.e., Norton and the other cross-defendants], and each of them, caused these items of damage to [Haskins], and she therefore seeks a declaration of her indemnity rights and compensation therefor, all in an amount to be proven at trial." (Italics added.)
In her fifth cause of action for professional negligence against Norton and other cross-defendants, Haskins incorporated by reference her previous allegations (including those alleged in her first and second causes of action) and then specifically alleged in paragraph 37 that Haskins "has been damaged, and may become further damaged, were the court to find in favor of Norton and against [Haskins]. Cross-Defendants [i.e., Norton and the other cross-defendants] have failed to honor legal and fiduciary duties and obligations owing as set forth above. ... By breach of Cross-Defendants' [i.e., Norton and the other cross-defendants'] duties, [Haskins] has been harmed by Cross-Defendants [i.e., Norton and the other cross-defendants] and each of them." In paragraph 38, Haskins alleged: "[Haskins] has been caused legal expense, costs, unpaid loans, worry, aggravation, mental and physical stress, and heartache as a result of the professional malpractice committed by Cross-Defendants, and each of them, and now having to defend this action [i.e., Norton's action against Haskins]." (Italics added.) In paragraph 39, Haskins alleged: "Cross-Defendants [i.e., Norton and the other cross-defendants], and each of them, caused these items of damage to [Haskins], and she therefore seeks compensation therefor, all in an amount to be proven at trial (Italics added.)
On November 14, Norton filed a special motion to strike Haskins's first amended cross-complaint against her pursuant to section 425.16 and a related request for attorney fees and costs (anti-SLAPP motion). Norton argued that her anti-SLAPP motion should be granted on the grounds that Haskins's first amended cross-complaint arose out of her (Norton's) exercise of her right of petition and that her actions and communications were privileged under the litigation privilege and that it was not probable that Haskins would prevail on her claims. Norton argued that Haskins alleged the second and fifth causes of action of the first amended cross-complaint against her "because Norton successfully sued Haskins for an equitable lien on Haskins'[s] real property." Norton noted that Haskins filed the first amended cross-complaint against her after the trial court had conducted its bench trial on Norton's action and issued its statement of intended decision awarding Norton equitable relief in her action against Haskins. Norton further argued that the causes of action alleged against her in Haskins's first amended cross-complaint were "premised on Norton's having filed a lawsuit against Haskins and now having prevailed on that lawsuit." Norton argued that her filing of a lawsuit against Haskins was protected conduct under section 425.16 and therefore Haskins could not base a claim against her for having filed, and prevailed on, that lawsuit. Norton alternatively argued that her conduct and communications were protected by the litigation privilege under Civil Code section 47. Norton also requested an award of her attorney fees and costs incurred to prosecute her anti-SLAPP motion as required by section 425.16, subdivision (c).
Also on that date, Norton filed a demurrer to Haskins's first amended cross-complaint.
On December 13, the trial court issued a minute order in which it, inter alia, denied Norton's anti-SLAPP motion to strike Haskins's first amended cross-complaint and Norton's related request for an award of attorney fees and costs. The court concluded that the second and fifth causes of action involved only a breach of the Note and therefore did not implicate Norton's protected petitioning activity within the meaning of section 425.16. Because the court denied Norton's anti-SLAPP motion on the ground she failed to carry her burden to meet the first prong (i.e., protected conduct), the court also denied Norton's request for attorney fees and costs.
In its December 13, 2019 minute order, the court also sustained Norton's demurrer to Haskins's first amended cross-complaint and gave Haskins 20 days leave to amend her cross-complaint.
On December 23, Haskins filed a second amended cross-complaint, which again named Norton as a cross-defendant. Also on that date, Norton filed a motion for reconsideration of the December 13 order denying her anti-SLAPP motion. Haskins opposed Norton's motion for reconsideration. On January 24, 2020, Norton filed a demurrer to Haskins's second amended cross-complaint.
On January 31, the court issued a minute order denying Norton's motion for reconsideration on the ground that her anti-SLAPP motion had been rendered moot by Haskins's filing on December 23, 2019 of her second amended cross-complaint. On February 21, 2020, the court sustained Norton's demurrer to Haskins's second amended cross-complaint without leave to amend.
B
Relevant legal principles. A SLAPP "is a civil lawsuit that is aimed at preventing citizens from exercising their political rights or punishing those who have done so.' "While SLAPP suits masquerade as ordinary lawsuits such as defamation and interference with prospective economic advantage, they are generally meritless suits brought primarily to chill the exercise of free speech or petition rights by the threat of severe economic sanctions against the defendant, and not to vindicate a legally cognizable right." '" (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) Section 425.16, the anti-SLAPP statute, "was enacted in 1992 for the purpose of providing an efficient procedural mechanism to obtain an early and inexpensive dismissal of nonmeritorious claims 'arising from any act' of the defendant '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 . . . .' (§ 425.16, subd. (b)(1).)" (Martinez v. Metabolife Internal., Inc. (2003) 113 Cal.App.4th 181, 186.)
Section 425.16, subdivision (b)(1) provides:
"A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (Italics added.)
A two-step process applies in deciding an anti-SLAPP motion. "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 (Equilori).) "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 v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).)
Under the first step, the defendant has the initial burden to show that the claim arose from his or her protected activity. (Equilon, supra, 29 Cal.4th at p. 67.) In deciding whether the defendant has met that burden, a court considers "whether the plaintiffs cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of Cotati), italics added.) The court's focus is not the form of the cause of action or claim, "but, rather, the defendant's activity that gives rise to his or her asserted liability-and whether that activity constitutes protected speech or petitioning." (Navellier, supra, 29 Cal.4th at p. 92.) "The Legislature spelled out the kinds of activity it meant to protect in section 425.16, subdivision (e): 'As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (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.'" (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422 (City of Montebello).)
"Because of these specifications, courts determining whether a cause of action arises from protected activity are not required to wrestle with difficult questions of constitutional law, including distinctions between federal and state protection of free expression. 'The only means specified in section 425.16 by which a moving defendant can satisfy the requirement is to demonstrate that the defendant's conduct. . . falls within one of the four categories described in subdivision (e), defining subdivision (b)'s phrase, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue." '" (City of Montebello, supra, 1 Cal.5th at p. 422.) Thus, "courts determining whether conduct is protected under the anti-SLAPP statute look not to First Amendment law, but to the statutory definitions in section 425.16, subdivision (e)." (Ibid.)
"A claim arises from protected activity when that activity underlies or forms the basis for the claim." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062-1063 (Park), italics added.) "To determine whether a claim arises from protected activity, courts must 'consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.'" (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson).) If a complaint alleges mixed causes of action, an anti-SLAPP motion can be used to attack parts of a cause of action. (Bared v. Schnitt (2016) 1 Cal.5th 376, 393 (Baral).) Baral stated: "[C]ourts may rule on plaintiffs' specific claims of protected activity, rather than reward artful pleading by ignoring such claims if they are mixed with assertions of unprotected activity." (Ibid.)
Baral clarified, however, that "[assertions [involving protected conduct] that are 'merely incidental' or 'collateral' are not subject to section 425.16." (Baral, supra, 1 Cal.5th at p. 394.) In discussing protected acts that are incidental to the plaintiffs claims for relief, Baral cited Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, in which the court stated at page 1183: "For purposes of anti-SLAPP analysis, ... an alleged act is incidental to a claim, and incidental to any unprotected activity on which the claim is based, only if the act is not alleged to be the basis for liability." (Baral, at p. 394.) Wallace, in turn, cited Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, at pages 414 to 417, in which the court concluded that the defendant's advertising conduct was merely incidental to its manufacturing and sales conduct that was the basis for plaintiffs claims for relief. (Wallace, at p. 1183; see also Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 [protected conduct that is merely incidental to unprotected conduct is not subject to anti-SLAPP statute]; Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1399 [anti-SLAPP statute does not apply when defendant's alleged protected conduct is merely evidence supporting plaintiffs claims for relief and does not constitute the alleged wrongful conduct itself].) Baral further noted that "[allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute." (Baral, at p. 394.) Thus, at the first step of the anti-SLAPP analysis, a court determines whether a complaint's allegations of protected conduct are the basis for a claim for relief or, instead, are incidental or collateral to, or merely provide context for, a claim for relief based on unprotected conduct.
Section 425.16, subdivision (c)(1) provides that a defendant who prevails on an anti-SLAPP motion generally "shall be entitled to recover [his or her] attorney's fees and costs." (See Wilson, supra, 7 Cal.5th at p. 884.) A defendant who prevails in an anti-SLAPP appeal is also entitled to attorney fees and costs incurred on appeal. (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 438 (RGC Gaslamp, LLC); Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1426 (Dowling).)
On appeal from an order denying an anti-SLAPP motion, "[w]e independently review the record to determine whether the asserted causes of action arise from the defendant's free speech or petitioning activity, and, if so, whether the plaintiff has shown a probability of prevailing." (City of Alhambra v. D'Ausilio (2011) 193 Cal.App.4th 1301, 1306-1307; see also, Wilson, supra, 7 Cal.5th at p. 884; San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76, 94.) In so doing, 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).) "We do not make credibility determinations or compare the weight of the evidence presented below. Instead, we accept the opposing party's evidence as true and evaluate the moving party's evidence only to determine if it has defeated the opposing party's evidence as a matter of law." (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 872 (Nunez).)
C
Timeliness of Norton's appeal. We initially address Haskins's argument that Norton did not timely appeal the December 13, 2019 order denying her anti-SLAPP motion and is therefore precluded from challenging it. The sole premise of Haskins's argument is that Norton appealed the January 31, 2020 order denying her motion for reconsideration and not the December 13, 2019 order. However, the record does not support the premise of her argument.
California Rules of Court, rule 8.104(a)(1) provides that "a notice of appeal must be filed on or before the earliest of:
All references to rules are to the California Rules of Court.
"(A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, showing the date either was served;
"(B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or
"(C) 180 days after entry of judgment."
Our review of the record and the trial court's register of actions (ROA) for this case shows that no notice of entry or filed-endorsed copy of the December 13, 2019 order was served by either the court clerk or a party pursuant to rule 8.104(a)(1)(A) or (B). Rather, at most, the ROA shows that on December 13, 2019, cross-defendants Steven W. Haskins and Elena DuCharme served by first class mail on all parties a notice of ruling of the court's December 13, 2019 order, which, inter alia, granted DuCharme's special motion to strike Haskins's first amended cross-complaint against her and her related request for attorney fees and costs, which notice attached only a copy of the court's tentative ruling dated December 11, 2019 and that copy was not filed or endorsed within the meaning of rule 8.104(a)(1)(B). That notice of ruling clearly did not comply with rule 8.104(a)(1)(B)'s requirement that a notice of entry, or filed-endorsed copy, of the December 13, 2019 order be served by a party in order to trigger that rule's shortened 60-day period to appeal the December 13, 2019 order. (See, e.g., Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 900, 905.) Accordingly, Norton had 180 days from the date of the December 13, 2019 order to file her notice of appeal challenging that order.
On June 4, 2020, Norton filed a notice of cross-appeal, challenging both the December 13, 2019 order and the March 13, 2020 judgment. That notice of appeal was filed within 180 days of the December 13, 2019 order and was therefore timely filed within the applicable 180-day appeal period pursuant to rule 8.104(a)(1)(C). Accordingly, we reject Haskins's assertion that Norton did not timely appeal the December 13, 2019 order.
D
Analysis.
To satisfy the first prong of the two-step anti-SLAPP test, Norton was required to show that the causes of action alleged against her in Haskins's first amended cross-complaint arose out of Norton's protected activity, such as the exercise of her right to petition. "[A] cause of action arising from the defendant's (or . . . cross-defendant's) litigation activity directly implicates the right to petition and is subject to a special motion to strike. [Citations.]" (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700, citing Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741.) "Protected activity includes the filing and prosecution of lawsuits." (Long Beach Unified School Dist. v. Margaret Williams, LLC (2019) 43 Cal.App.5th 87, 97; see also, Takhar v. People ex rel. Feather River Air Quality Management Dist. (2018) 27 Cal.App.5th 15, 27; Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1165-1166; Nunez, supra, 241 Cal.App.4th at p. 872; Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1025 [protected petitioning activities include "the conduct of litigation"]; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 ["The filing of lawsuits is an aspect of the First Amendment right of petition."].) "A cross-complaint may be subject to an anti-SLAPP motion based on the plaintiffs right to petition. [Citation.] However, such a cross-complaint must allege a cause of action arising from the plaintiffs act of filing the complaint itself." (Joslin v. Third Laguna Hills Mutual (2020) 49 Cal.App.5th 366, 371-372.) Accordingly, to satisfy the first prong of protected petitioning activity, Norton was required to show that her" 'speech or petitioning activity itself" constituted the wrong complained of in the causes of action alleged against her in the first amended cross-complaint. (Wilson, supra, 7 Cal.5th at p. 884, citing Park, supra, 2 Cal.5th at p. 1060.) The focus is on the substance of the cause of action and whether the cause of action was based on an act in furtherance of Norton's right of petition. (Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 283 (Weeden).) Alternatively stated, if Norton had shown that the gravamen of the first amended cross-complaint against her was her filing of her complaint against Haskins, then Norton carried her burden to satisfy the first prong that Haskins's causes of action against her arose out of her right to petition. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1374 (Raining Data Corp.))
First prong showing. Based on our independent review of the pleadings, including the complaint, first amended cross-complaint, and the parties' supporting and opposing affidavits, we conclude that Norton satisfied her initial burden to show that Haskins's cross-claims against her arose out of her protected activity of exercising her right to petition. Specifically, Norton exercised her right of petition when she filed and prosecuted her complaint against Haskins and other defendants, alleging equitable causes of action that were based on Norton's loan to Deane, the proceeds of which were used to pay off the Haskel loan and trust deed encumbering the Tattersall property and thereby benefited Haskins as its sole owner. Following a bench trial on Norton's complaint, the trial court issued its statement of intended decision, indicating its intent to issue a statement of decision in Norton's favor by awarding her an equitable mortgage on the Tattersall property, which was solely owned by Haskins. One month later, Haskins filed her first amended cross-complaint, which alleged two causes of action against Norton. Haskins's first amended cross-complaint initially alleged that Norton had filed an action against Haskins based on Norton's loan to Deane and, as a result of Norton's action, Haskins "has been caused legal expense, costs, worry, aggravation, physical and emotional stress and heartache as a result of having to defend [Norton's] action and to prosecute this Cross-Complaint."
In her second cause of action for equitable indemnity and declaratory relief against Norton and the other cross-defendants, Haskins alleged that Norton and the other cross-defendants knew that Deane had executed the Note to Norton, that Deane's estate breached the Note, and that Norton and the other cross-defendants "each owed a duty of care to [Haskins] to not expose [Haskins] to potential liability under the [N]ote . . . ." Haskins further alleged that Norton and the other cross-defendants "should defend and indemnify [Haskins] herein. Tender of the underlying action [i.e., Norton's action against Haskins] is hereby made to each and every Cross-Defendant [e.g., Norton], along with a demand for defense and indemnity." (Italics added.) Haskins alleged: "[Haskins] has been caused legal expense, costs, worry, aggravation, physical and emotional stress and heartache as a result of having to defend this action [i.e., Norton's action against Haskins]" and "Cross-Defendants [i.e., Norton and the other cross-defendants], and each of them, caused these items of damage to [Haskins], and she therefore seeks a declaration of her indemnity rights and compensation therefor, all in an amount to be proven at trial." (Italics added.)
Applying the anti-SLAPP legal principles discussed above to the second cause of action alleged against Norton, it is clear that the basis or gravamen of Haskins's cross-claim against Norton was Norton's filing and prosecution of her complaint against Haskins. (Park, supra, 2 Cal.5th at pp. 1062-1063; City of Cotati, supra, 29 Cal.4th at p. 78; Weeden, supra, 70 Cal.App.5th at p. 283; Raining Data Corp., supra, 175 Cal.App.4th at p. 1374.) Haskins's allegations regarding Norton's action against her were not incidental or collateral to, and did not merely provide context for, her second cause of action against Norton, but instead provided the underlying basis for the elements of that cause of action. (Wilson, supra, 7 Cal.5th at p. 884; Baral, supra, 1 Cal.5th at p. 394.) In particular, the damages sought by Haskins against Norton arose from Norton's action against Haskins. But for Norton's filing and prosecution of her complaint against Haskins, Haskins's cross-claim against Norton would have no basis. (Park, at pp. 1063-1064.) Accordingly, Haskins's second cause of action against Norton arose out of Norton's exercise of her right to petition within the meaning of the anti-SLAPP statute. (§ 425.16, subd. (b)(1).) Therefore, contrary to the trial court's conclusion, Norton satisfied her initial burden to show that Haskins's second cause of action arose out of her right to petition.
Likewise, we conclude Haskins's fifth cause of action against Norton also arose out of Norton's exercise of her right to petition within the meaning of the anti-SLAPP statute. In her fifth cause of action for professional negligence against Norton and the other cross-defendants, Haskins incorporated by reference her previous allegations and alleged that she "has been damaged, and may become further damaged, were the court to find in favor of Norton and against [Haskins]." Haskins further alleged: "[Haskins] has been caused legal expense, costs, unpaid loans, worry, aggravation, mental and physical stress, and heartache as a result of the professional malpractice committed by Cross-Defendants, and each of them, and now having to defend this action [i.e., Norton's action against Haskins]." (Italics added.)
Applying the anti-SLAPP legal principles discussed above to the fifth cause of action alleged against Norton, it is clear that the basis or gravamen of Haskins's cross-claim against Norton was Norton's filing and prosecution of her complaint against Haskins. (Park, supra, 2 Cal.5th at pp. 1062-1063; City of Cotati, supra, 29 Cal.4th at p. 78; Weeden, supra, 70 Cal.App.5th at p. 283; Raining Data Corp., supra, 175 Cal.App.4th at p. 1374.) Haskins's allegations regarding Norton's action against her were not incidental or collateral to, and did not merely provide context for, her fifth cause of action against Norton, but instead provided the underlying basis for the elements of that cause of action. (Wilson, supra, 7 Cal.5th at p. 884; Baral, supra, 1 Cal.5th at p. 394.) In particular, the damages sought by Haskins against Norton arose from Norton's action against Haskins. But for Norton's filing and prosecution of her complaint against Haskins, Haskins's cross-claim against Norton would have no basis. (Park, at pp. 1063-1064.) Accordingly, Haskins's fifth cause of action against Norton arose out of Norton's exercise of her right to petition within the meaning of the anti-SLAPP statute. (§ 425.16, subd. (b)(1).) Therefore, contrary to the trial court's conclusion, Norton satisfied her initial burden to show that Haskins's fifth cause of action arose out of her right to petition.
Unlike the trial court, we conclude that neither the second nor fifth causes of action arose out of Norton's alleged breach of her purported duties to Haskins under the Note, but were instead based on Norton's protected activity of exercising her right to petition in filing and prosecuting her complaint for equitable relief against Haskins. Furthermore, as Norton notes, because the Note was a unilateral contract obligating Deane to pay money to her, she could not, as a matter of law, owe Haskins any duties under the Note. (See, e.g., Haulman v. Crumal (1936) 13 Cal.App.2d 612, 619; Bandoni v. Walston (1947) 79 Cal.App.2d 178, 183.)
Because we conclude Haskins's cross-claims against Norton arose out of her right to petition, we need not, and do not, address Norton's alternative assertion that her activity was also protected under the litigation privilege of Civil Code section 47.
Second prong showing. Because, as we concluded above, Norton carried her initial burden to show that Haskins's second and fifth causes of action arose out of Norton's exercise of her right to petition, the burden then shifted to Haskins to show a probability that she would prevail on those cross-claims. (§ 425.16, subd. (b)(1); Equilon, supra, 29 Cal.4th at p. 67.) To meet that burden, "the plaintiff must only bring forward sufficient evidence to make out a viable prima facie case at trial." (O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC (2019) 42 Cal.App.5th 546, 566 (O&C Creditors); see also, Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 602 (Area 51 Productions, Inc.) [to satisfy second prong, plaintiff had burden of submitting admissible evidence showing a probability of prevailing on each cause of action].) Here, in opposing Norton's anti-SLAPP motion, Haskins filed a memorandum arguing that her causes of action against Norton were based on Norton's breach of her duties under the Note. In arguing that she met her burden to satisfy the second prong of the anti-SLAPP test, Haskins asserted that there were triable issues whether Norton owed her duties under the Note (e.g., to accelerate payment on the Note while Deane had assets available to pay off the Note). In a conclusory manner, Haskins argued that there was a substantial likelihood that she would prevail on her causes of action against Norton and therefore the court should deny Norton's anti-SLAPP motion. The only declaration or affidavit submitted in support of Haskins's opposition was a declaration submitted by her trial counsel in which he set forth the amount of attorney fees that Haskins incurred in opposing Norton's anti-SLAPP motion. In her reply, Norton argued that Haskins could not allege a cause of action against her for breach of the Note and that Haskins had failed to submit any evidence showing a probability that she would prevail on the second and fifth causes of action alleged against her.
Because the trial court concluded Norton failed to carry her initial burden to show Haskins's causes of action against her arose out of her protected activity under the anti-SLAPP statute, the court did not address the second prong of the two-step anti-SLAPP test. Having concluded Norton did, in fact, carry her burden on the first prong of the anti-SLAPP test, we now must address whether Haskins carried her burden on the second prong of that test to show a probability that she would prevail on her causes of action against Norton.
In opposing Norton's anti-SLAPP motion, Haskins submitted no legal authority, much less evidence, showing that there was a probability she would prevail on her causes of action against Norton for equitable indemnity (second cause of action) and professional negligence (fifth cause of action) based on any purported duties that Norton owed Haskins under the Note. Based on our independent review of the record and applicable law, we conclude Haskins failed to carry her burden below to show there was a probability that she would prevail on those causes of action, which, on their face, appear to lack any merit. First, Haskins did not submit any evidence, much less sufficient evidence, to make a prima facie showing in support of her causes of action against Norton and a probability of prevailing on those causes of action. (O&C Creditors, supra, 42 Cal.App.5th at p. 566; Area 51 Productions, Inc., supra, 20 Cal.App.5th at p. 602.) Second, Haskins did not present any legal authority, either in the trial court or on appeal, showing that Norton owed her any duty under the Note as she asserted, much less that Norton breached any such duty, or that Norton could be, much less likely would be, found liable to Haskins for damages she suffered as a result of Norton's action against her. Accordingly, we conclude, as a matter of law, that Haskins failed to carry her burden to show a probability she would prevail on her causes of action against Norton.
Reversal of order and remand with directions. Because Norton met her burden to show Haskins's causes of action against her arose out of her exercise of her right to petition and Haskins did not meet her burden to show a probability she would prevail on those causes of action, we conclude that the trial court erred by denying Norton's anti-SLAPP motion to strike Haskins's first amended cross-complaint against her and denying Norton's related request for an award of attorney fees and costs incurred in making her anti-SLAPP motion. Accordingly, we need not, and do not, address Norton's further contention that the trial court had the authority to decide her motion for reconsideration of its order denying her anti-SLAPP motion despite Haskins's filing of her second amended cross-complaint and erred by not ruling on, and granting, her motion for reconsideration.
Furthermore, to the extent Haskins argues that her filing of her second amended cross-complaint after the trial court issued its order denying Norton's anti-SLAPP motion made Norton's anti-SLAPP motion moot for purposes of Norton's cross-appeal, case law recognizes that a cross-complainant cannot avoid a ruling on an anti-SLAPP motion to a cross-complaint by subsequently filing an amended cross-complaint. (See, e.g., JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477-478; Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074.) Likewise, Haskins's filing of her second amended cross-complaint did not make moot Norton's cross-appeal of the order denying her anti-SLAPP motion to strike the first amended cross-complaint. (See Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613.)
Because the trial court erred by denying Norton's anti-SLAPP motion to strike Haskins's first amended cross-complaint and related request for attorney fees and costs, we reverse the court's order denying Norton's anti-SLAPP motion and remand the matter with directions that the court issue a new order granting her anti-SLAPP motion and awarding Norton her attorney fees and costs incurred in filing and prosecuting her motion below, as well as in prevailing on her cross-appeal of the order denying her anti-SLAPP motion, in such amounts shown by Norton in further proceedings on remand. (§ 425.16, subd. (c); Wilson, supra, 7 Cal.5th at p. 884; RGC Gaslamp, LLC, supra, 56 Cal.App.5th at p. 438; Dowling, supra, 85 Cal.App.4th at p. 1426.)
VI
Expungement of Lis Pendens
Norton contends that the trial court abused its discretion by granting Haskins's motion to expunge the lis pendens she recorded on the Tattersall property and awarding Haskins her related attorney fees and costs.
A
On September 13, 2019, the trial court issued its statement of intended decision, setting forth its intent to award Norton an equitable mortgage on the Tattersall property. On October 10, Norton recorded a lis pendens on the Tattersall property. Haskins filed a motion to expunge the lis pendens and requested an award of her related attorney fees and costs. Norton opposed the motion to expunge.
At the December 13 hearing on the motion, the court issued an order taking under submission its tentative ruling granting Haskins's motion to expunge the lis pendens and awarding her attorney fees and costs of $4,181.50. On December 19, the court issued its statement of decision awarding Norton an equitable mortgage on the Tattersall property. Also on December 19, the court issued an order confirming its tentative ruling granting Haskins's motion to expunge the lis pendens recorded by Norton on the Tattersall property and awarding Haskins attorney fees and costs of $4,181.50. Norton did not thereafter file a writ petition challenging that order.
B
In her cross-appellant's opening brief, Norton argues that she had a right to record a lis pendens on the Tattersall property after the court issued its statement of intended decision and therefore the court erred by granting Haskins's motion to expunge the lis pendens and awarding her attorney fees and costs. However, Haskins argues in her cross-respondent's brief, and Norton concedes in her cross-appellant's reply brief, that an order granting a motion to expunge a lis pendens and awarding attorney fees and costs is not an appealable order and may be challenged only by means of a writ petition.
Section 405.39 provides:
"No order or other action of the court under this chapter shall be appealable. Any party aggrieved by an order made on a motion under this chapter may petition the proper reviewing court to review the order by writ of mandate. The petition for writ of mandate shall be filed and served within 20 days of service of written notice of the order by the court or any party."
In Mix v. Superior Court (2004) 124 Cal.App.4th 987, the court stated: "Decisions on motions to expunge lis pendens fall into that class of trial court orders which are expressly not appealable; intermediate appellate courts only reach them via petitions for writ of mandate. [Citation.]" (Id. at p. 996, citing § 405.39, fn. omitted; see also, Woodridge Escondido Property Owners Assn. v. Nielsen (2005) 130 Cal.App.4th 559, 577.)
Likewise, any challenge to an order awarding attorney fees and costs related to a motion to expunge a lis pendens must be made by means of a writ petition and not an appeal. (Shah v. McMahon (2007) 148 Cal.App.4th 526, 529.) Shah explained that because such an attorney fee order is made pursuant to section 405.38, that order falls within the provisions of section 405.39, quoted above, limiting review of such orders to petitions for writ of mandate and expressly precluding challenges by appeal. (Shah, at p. 529.) Accordingly, Shah dismissed the appeal challenging the trial court's order awarding the respondent attorney fees and costs incurred in moving to expunge the lis pendens. (Id. at p. 530.)
Conceding that she could not properly appeal the order granting Haskins's motion to expunge the lis pendens and awarding her attorney fees and costs, Norton nevertheless requests in her cross-appellant's reply brief that we exercise our discretion to treat her appeal of that order as a petition for writ of mandate and address the merits of her contention that the court erred. Although, as Norton argues, an appellate court may treat an improper appeal as a writ petition in unusual circumstances (see, e.g., Zabetian v. Medical Board of California (2000) 80 Cal.App.4th 462, 466), we decline to exercise our discretion to do so in the circumstances of this case.
Assuming arguendo, as Norton asserts, that her contention on appeal involves a pure question of law regarding whether she properly recorded a lis pendens on the Tattersall property, that reason is insufficient for this court to address the merits of that question given her failure to provide good reasons for her dilatory conduct in challenging the order. Furthermore, although, as Norton notes, there apparently was no service of the order on her by the court or any party within the meaning of section 405.39, she does not deny that she had actual knowledge of that order. Despite her knowledge of that order, Norton does not cite any case showing, and we are unpersuaded, that she nevertheless had an unlimited, or unspecified extended, time period in which to file a writ petition challenging that order absent the required service of the order under section 405.39 that would have triggered the statutory 20-day time period to file a writ petition. Furthermore, despite her admitted knowledge of that December 19, 2019 order, Norton did not file her notice of cross-appeal until June 4, 2020, and, even then, that notice did not expressly appeal the December 19, 2019 order granting Haskins's motion to expunge the lis pendens and awarding her attorney fees and costs. Rather, the first time Norton raised her challenge to that December 19, 2019 order was in her combination respondent's and cross-appellant's brief, which she filed on August 24, 2021. In requesting that we exercise our discretion to treat her appeal of that order as a petition for writ of mandate, Norton provides no reasonable explanation for her 20-month delay in challenging that order.
Although we do not dispose of Norton's contention based on her failure to file a notice of appeal that challenged the December 19, 2020 order, we nevertheless note, assuming arguendo that order was appealable, it appears that her June 4, 2020 notice of appeal expressly challenged only the December 13, 2019 order denying her anti-SLAPP motion and the March 13, 2020 judgment awarding her equitable relief and, by omitting any reference to the December 19, 2019 order, failed to properly appeal that order. (Cf. In re Marriage of Patscheck (1986) 180 Cal.App.3d 800, 804 [appellate court ordinarily has no discretion to treat untimely appeal of appealable order as petition for writ].) Here, it appears that Norton did not file a notice of appeal challenging the December 19, 2019 order within 180 days of its issuance as required by rule 8.104(a)(1)(C) for a timely appeal of that order.
Appellate courts have no jurisdiction to consider an appeal from a nonappealable order. (Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688, 696.) Although Norton correctly asserts that appellate courts have discretion in unusual cases to treat an appeal as a writ petition, exercise of that discretion should only be granted under the most extraordinary circumstances. (Wells Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1055; see also Olson v. Cory (1983) 35 Cal.3d 390, 401 [appellate court should not exercise power to treat appeal of nonappealable order as writ petition except in "unusual circumstances"].) However, because section 405.39 expresses a legislative intent requiring all challenges to orders granting motions to expunge lis pendens to, in general, be filed within 20 days after service of the orders and then only by means of a writ petition and not an appeal, and because Norton waited more than 20 months, and not 20 days, to challenge the December 19, 2019 order, we decline to exercise our discretion to treat her appeal of that order as a writ petition. Accordingly, we must dismiss her appeal of that order.
DISPOSITION
The judgment is affirmed. Norton's appeal of the December 19, 2019 order granting Haskins's motion to expunge the lis pendens and awarding her attorney fees and costs is dismissed. The trial court's order dated December 13, 2019 is reversed to the extent it denied Norton's section 425.16 motion to strike Haskins's first amended cross-complaint and the matter is remanded with directions that the court issue a new order granting that motion and awarding Norton her attorney fees and costs incurred in filing and prosecuting that motion below and in prevailing on her cross-appeal of that order in such amounts shown by Norton in further proceedings on remand. Norton shall recover her costs in responding to Haskins's appeal and in prevailing on her cross-appeal of the December 13, 2019 order. Haskins shall not recover her costs in responding to Norton's cross-appeal.
WE CONCUR: IRION, J., DO, J.