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Robinson v. Goebel

California Court of Appeals, Fourth District, First Division
Sep 18, 2008
No. D051812 (Cal. Ct. App. Sep. 18, 2008)

Opinion


ROBERT PAUL ROBINSON et al., Plaintiffs and Respondents, v. LOUIS E. GOEBEL, Defendant and Appellant. D051812 California Court of Appeal, Fourth District, First Division September 18, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County No. 37-2007-00068187- CU-NP-CTL, Jay M. Bloom, Judge.

HALLER, J.

Robert and M. Alicia Robinson filed a complaint against their former attorney, Louis Goebel, alleging Goebel was wrongfully attempting to collect on a judgment against them, and seeking damages and declaratory relief. Goebel moved to strike the complaint under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) The court ruled the complaint was not governed by the anti-SLAPP statute, and thus denied the motion.

All further statutory references are to the Code of Civil Procedure.

We conclude Goebel met his burden to demonstrate the Robinsons' claims arise from protected activity, and the Robinsons failed to meet their burden to show they had a probability of prevailing on those claims. Accordingly, we reverse the order. We direct the court to vacate the order denying Goebel's anti-SLAPP motion and issue an order granting the motion and dismissing the Robinsons' complaint.

FACTUAL AND PROCEDURAL BACKGROUND

The following summary is based on the pleadings and the evidence presented in the anti-SLAPP proceedings. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

In their respondent's brief, the Robinsons make numerous factual assertions without citing to the appellate record and include facts that are not contained in the appellate record and/or were not produced in the anti-SLAPP proceedings below. We strike these assertions and admonish the Robinsons' counsel that in the future he should strictly abide by well established appellate rules in filing appellate briefs. (See Cal. Rules of Court, rule 8.204(a)(1)(C).)

In the mid-1980's Goebel's law firm represented the Robinsons in a lawsuit in which the Robinsons sought compensation for construction defects at their residence. The matter eventually settled and the Robinsons recovered $250,000 in the settlement.

The Robinsons thereafter did not pay Goebel's attorney fees. To enforce the parties' fee agreement, Goebel brought a claim against the Robinsons, and in December 1989 recovered a $88,941 judgment (December 1989 judgment).

The Robinsons did not pay this judgment, and therefore Goebel was required to make efforts to execute on the judgment. In so doing, in 1990, Goebel obtained an order for a marshal's sale on property owned by Mrs. Robinson in Bonita (the Bonita property). Although the original order initially established the minimum bid at $75,000, the sale was delayed several years, in part, because the Robinsons repeatedly filed bankruptcy petitions.

In 1995, the marshal's sale on the Bonita property occurred. Goebel made a $45,000 credit bid, and obtained title to the property. This amount was credited to the December 1989 judgment, thus lowering the amount the Robinsons owed to Goebel. However, the Robinsons still owed the remaining judgment amount plus interest.

In June 1995, Goebel garnished Mrs. Robinson's wages, but the monthly garnishments were insufficient to reduce the amount owed on the December 1989 judgment because the garnishments were less than the interest that was accruing.

In 1999, Goebel filed an application for renewal of the judgment, based on evidence showing the Robinsons owed a remaining balance of $110,981.94. This balance consisted of the original $88,941 judgment, plus continuing interest, minus the $45,000 credit bid, and minus the amounts that had been garnished from Mrs. Robinson's wages.

A money judgment is enforceable within 10 years after entry of judgment. (§§ 683.020, 683.030.) After that period, all enforcement procedures must cease and any liens based on the judgment are extinguished. (§ 683.020.) To avoid this result, a party must apply for a renewal of judgment. (§ 683.110.) A renewal extends the enforcement period for an additional 10 years. (§ 683.130.) A judgment creditor must serve the judgment debtor with a notice of renewal. (§ 683.160.) Within 30 days of service of the notice, the judgment debtor may move to vacate the renewal. (§ 683.170.) The court may vacate renewal "on any ground that would be a defense to an action on the judgment. . . . " (§ 683.170, subd. (a).)

In opposition to the renewal, the Robinsons filed a motion to vacate, claiming the judgment should have been satisfied through the marshal's sale of the Bonita property. Goebel opposed the motion, presenting evidence that the marshal's sale of the Bonita property did not fully satisfy the judgment and the calculation did properly take into account all credits, including the $45,000 credit bid and the garnishment payments. The court (Judge Richard Strauss), denied the Robinsons' motion to vacate and thus the December 1989 judgment was renewed for 10 more years.

The record does not include the Robinsons' motion to vacate, but the essential thrust of the motion can be gleaned from Goebel's opposition to the motion, which is part of the record.

The Robinsons thereafter continued to refuse to pay any amount on the outstanding judgment. In November 2006, Goebel obtained a writ of execution from the court clerk, based on evidence showing the amount of the outstanding judgment amount ($187,969.98). Goebel then sought to levy execution of this writ on the Robinsons' home. In so doing, Goebel gave notice of the pending sale to the Robinsons and filed an application in the superior court for an order to levy on this writ and for a court-ordered sale of the Robinsons' residence. The application was required under the statutory scheme relating to enforcement of money judgments on a debtor's residence.

A judgment lien may be attached to a personal residence, but the debtor is generally entitled to keep some proceeds from the sale (known as a homestead exemption). (§§ 704.710-704.720.) The statutes require the judgment creditor to apply to the court for an order of sale of the dwelling, and the creditor must serve the judgment debtor with notice of the proposed sale. The court must then hold a hearing, during which the court determines the existence and amount of the homestead exemption, and then orders a sale of the dwelling subject to the exemption. (§ 704.780.)

The matter was set for hearing on March 8, 2007. At the hearing, the court (Judge Rafael Arreola) granted the Robinsons' request to continue the hearing until June 14, 2007 to enable them to refinance the property or initiate a third party sale. At the continued hearing, the Robinsons and Goebel were each represented by counsel. After the hearing, the court signed an order for the sale of the Robinsons' residence, and ordered that the minimum bid shall be the homestead exemption amount of $357,500, and set forth the priority for allocating the funds upon the sale.

Two days later, the Robinsons filed a superior court complaint against Goebel, alleging Goebel's actions were wrongful in seeking to execute on the judgment. The Robinsons asserted four causes of action, each based on the factual allegations that Goebel's collection efforts were improper because Goebel's credit bid on the Bonita property should have satisfied the entire judgment. In support, the Robinsons alleged that the Bonita property had "an estimated equity in excess of $200,000" and various irregularities occurred in the Bonita property sale, including that the $45,000 was below the minimum bid in an earlier order authorizing the sale. The complaint's factual allegations focused primarily on these facts surrounding the Bonita property sale.

Each cause of action sought a different remedy. The first cause of action sought declaratory relief that the December 1989 judgment had been satisfied by the Bonita property sale. The second cause of action, "Cancellation of Instrument," sought to cancel the judgment based on the Robinsons' allegations that the judgment had been satisfied. The third cause of action, "Abuse of Process," sought tort damages, and alleged that Goebel "is using the court's process in the judgment lien sale for which the process was not designed" and is "currently committing a willful act in the use of the judgment lien sale process, in a manner not proper in the regular conduct of the proceeding, in seeking another execution sale . . . ." The fourth cause of action, "Accounting," sought an equitable accounting for the equity involved in the Bonita sale, and alleged that the equity from the Bonita sale was never properly credited to the outstanding judgment balance.

Goebel moved to strike the complaint under the anti-SLAPP statute. (§ 425.16.) In support, Goebel presented evidence of the factual and procedural history underlying his collection efforts, as summarized above. Goebel argued that his alleged wrongful activities occurred in furtherance of litigation and enforcement of the judgment, and therefore were governed by the anti-SLAPP statute. He also argued that the Robinsons would be unable to establish a probability of prevailing on the merits because the credit bid amount on the Bonita property reflected the property value given the then-existing senior liens. Thus, even if the Robinson's assertion was true that the Bonita property was worth $200,000, $45,000 was a plausible credit bid because it was subject to the senior liens. Goebel also asserted the claims were barred by the res judicata doctrine (because the Robinsons' claims were previously litigated at the 1999 motion to vacate proceedings) and by the applicable statute of limitations.

In response, the Robinsons argued the anti-SLAPP statute was inapplicable because the current lawsuit was not intended to " 'chill' " Goebel's collection of the judgment, but rather to have it judicially determined that the judgment has been satisfied and to collect tort damages for the abuse of process. The Robinsons also asserted they had a "HIGH" probability of prevailing, but did not present any evidence in support of this assertion. In response to Goebel's statute of limitations and res judicata arguments, the Robinsons stated the focus of their complaint was Goebel's "current" activities, including that he is "currently extracting" money from the Robinsons by forcing a sale of their home, and that the complaint's discussion of Goebel's prior collection activities was merely "intended as evidentiary support for the complaint."

After a hearing and permitting supplemental briefing, the court denied Goebel's motion, finding Goebel did not meet his burden to show the complaint was governed by the anti-SLAPP statute. Relying on Blackburn v. Brady (2004) 116 Cal.App.4th 670, the court stated: "[Goebel] was not sued for exercising his constitutional right of free speech; he was sued because [his] purchase of their property should have satisfied the judgment against them. In attempting to enforce a money judgment he had obtained, defendant was not attempting to obtain any decision from the court but it was rather a ministerial process not protected by § 425.16." The court thus declined to reach the issue of whether the Robinsons met their burden to show a probability of prevailing on the complaint.

DISCUSSION

I. Generally Applicable Legal Principles

In ruling on a defendant's anti-SLAPP motion, a court engages in a two-step analysis. (Navellier v. Sletten, supra, 29 Cal.4th at p. 88.) First, the court must determine "whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity." (Ibid.) Second, if the court finds this showing has been made, it must then dismiss the cause of action unless the plaintiff meets its burden to demonstrate a probability of prevailing on the claim. (Ibid.) On appeal, we conduct a de novo review on each of these issues. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) We review the trial court's ruling and not its rationale. (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 80.)

II. The Robinsons' Claims Arise from Protected Activity

With respect to the first step of the section 425.16 analysis, a cause of action is subject to a defendant's special motion to strike if the claim is one "arising from any act . . . 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 . . . ." (§ 425.16, subd. (b)(1); see Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1396.) The anti-SLAPP statute identifies four categories of activities that are "in furtherance of" a defendant's free speech or petition rights. (§ 425.16, subd. (e).) Goebel relies primarily on the first two categories to assert the statute's applicability: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; [and] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law." (§ 425.16, subd. (e)(1), (2), italics added.)

The " 'arising from' " statutory requirement "means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) "[T]he critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity." (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) "The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning." (Id. at p. 92.) The " 'arising from' prong encompasses any action based on protected speech or petitioning activity as defined in the statute (id. at pp. 89-95), regardless of whether the plaintiff's lawsuit was intended to chill . . . or actually chilled . . . the defendant's protected conduct." (Brenton v. Metabolife Internat., Inc. (2004) 116 Cal.App.4th 679, 685.) Accordingly, a court must focus on the defendant's activities that are alleged to be wrongful and determine whether these activities are protected conduct within the meaning of the statute.

In this case, the essential factual basis for each cause of action is the same: the Robinsons' assertion that Goebel wrongfully continued to seek court approval to enforce the December 1989 judgment after the Bonita property sale. Specifically, the Robinsons allege Goebel "is using the court's process in the judgment lien sale" to obtain title to their home, and challenge the validity of Goebel's application for a superior court order authorizing a sheriff's sale of their home in 2007. The Robinsons essentially allege that Goebel acted wrongfully in making assertions to the court that the judgment had not been fully satisfied because the Bonita property sale should have fully satisfied the judgment.

These alleged wrongful activities arise from protected petitioning activity governed by the anti-SLAPP statute. (§ 425.16, subd. (e)(2).) Motions and applications filed in a superior court are, by definition, writings "made in connection with an issue under consideration or review by a . . . judicial body" and thus fall within section 425.16, subdivision (e)(2).

In arguing to the contrary, the Robinsons rely solely on this court's decision in Blackburn v. Brady, supra, 116 Cal.App.4th 670, which is factually distinguishable. In Blackburn, the judgment debtor owned property as a tenant in common with a third party (Brady). (Id. at pp. 672-673.) To collect on the judgment, the judgment creditor compelled a sheriff's sale on the debtor's one-half interest of the property. (Ibid.) At the sheriff's sale, the judgment creditor made a credit bid of $211,000, and obtained title to the property. (Id. at p. 673.) The judgment creditor then sued the third party (Brady), alleging: (1) prior to the sheriff's sale Brady failed to record evidence that a second deed of trust was satisfied for the purpose of discouraging other purchasers from bidding on the property; and (2) Brady wrongfully bid on the property for the purpose of inducing Blackburn to credit bid more than the property was worth. (Id. at pp. 673-674.)

Brady argued these claims were subject to the anti-SLAPP law because they arose "out of his written bid or oral statements made at the . . . sheriff's auction" and therefore were made in connection with " 'an official proceeding' " under section 425.16, subdivision (e)(2). (Blackburn, supra, 116 Cal.App.4th at p. 677, italics added.) Rejecting this argument, this court held a sheriff's sale is not an official proceeding within the meaning of the anti-SLAPP statute. (Ibid.) We explained: "The ministerial event of a sheriff's sale or auction . . . consists merely of offers and the acceptance of the highest bid made according to certain requirements without any determination based on the exercise of one's free speech or petition rights. As such, it concerns a business dealing or transaction somewhat analogous to the unprotected activity of bidding on public contracts . . ., and not the exercise of protected activity." (Ibid.)

This case is different. The Robinsons' allegations do not concern alleged wrongful conduct that occurred at a foreclosure or sheriff's sale of property. Rather, the alleged wrongful conduct is what occurred after the Bonita property sale and before the sale of their home—Goebel's filing of a petition in the superior court seeking to renew the judgment, and then filing an application in superior court seeking to force a sale of the Robinsons' residence. In their opposition papers below, the Robinsons state that the essence of their complaint was to challenge Goebel's "current" activities. The record establishes that these "current" activities consisted primarily of Goebel's filing an application in superior court to compel a sale of the Robinsons' residence. This conduct is a protected petitioning activity governed by the anti-SLAPP statute.

III. Probability of Prevailing on the Merits

Once a defendant establishes the plaintiff's complaint is subject to the anti-SLAPP statute, the burden shifts to the plaintiff to show a "probability" the plaintiff will prevail on the claims. (§ 425.16, subd. (b)(1).) To meet this burden, the Robinsons were required to present evidence that, if believed by the trier of fact, was sufficient to support a judgment in their favor. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) In deciding the question of potential merit, the trial court considers the parties' pleadings and evidentiary submissions. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) The court does not weigh the credibility or compare the strength of competing evidence, but merely determines if there is sufficient evidence to show the plaintiff can satisfy each element of his or her claim. (Ibid.) Although the trial court did not reach this issue, we may do so here because we are required to conduct a de novo review of the record and the parties had the full opportunity to brief the issues in the court below and on appeal.

The Robinsons presented no evidence supporting their claims that Goebel acted wrongfully in continuing to assert that the judgment had not been satisfied. They argue on appeal that the abuse of process claim was meritorious because the judgment was satisfied by the sale of the Bonita property, and "Goebel eventually pocketed $164,000.00 from the sale of the home." However, they presented no evidence to support this claim. Although they alleged that the Bonita property was worth $200,000 at the time it was purchased by Goebel, they presented no supporting evidence. Nor do they present legal authority showing that their claim is correct as a matter of law. Additionally, the Robinsons presented no evidence to rebut the prima facie case made by Goebel on his res judicata affirmative defense.

The Robinsons made no effort to produce any evidence establishing there is a probability that they will prevail on their claims. The record additionally shows their claims are barred by the res judicata doctrine. Accordingly, their complaint must be dismissed.

DISPOSITION

Order reversed. The trial court shall vacate its order denying Goebel's anti-SLAPP motion and issue an order granting the motion and dismissing the Robinsons' complaint. Respondents to pay appellant's costs on appeal.

WE CONCUR: BENKE, Acting P. J., IRION, J.


Summaries of

Robinson v. Goebel

California Court of Appeals, Fourth District, First Division
Sep 18, 2008
No. D051812 (Cal. Ct. App. Sep. 18, 2008)
Case details for

Robinson v. Goebel

Case Details

Full title:ROBERT PAUL ROBINSON et al., Plaintiffs and Respondents, v. LOUIS E…

Court:California Court of Appeals, Fourth District, First Division

Date published: Sep 18, 2008

Citations

No. D051812 (Cal. Ct. App. Sep. 18, 2008)