Opinion
D058239 Super. Ct. No. 37-2009-00056400-CU-MC-NC
12-21-2011
RICHARD A. SHAPIRO, Plaintiff and Respondent, v. JUDY L. SHAPIRO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Thomas P. Nugent, Judge. Affirmed in part; reversed in part.
After Judy L. Shapiro obtained a default judgment against Richard A. Shapiro in a dissolution action, he brought this action against her for conversion, among numerous other claims. Judy appeals an order denying her special motion to dismiss the conversion cause of action under the anti-SLAPP (strategic lawsuit against public participation) statute (Code Civ. Proc., § 425.16). She contends the trial court erred by finding the statute inapplicable on the ground the conversion claim arises principally from unprotected activity rather than from her right of petition in the dissolution action, and that Richard did not meet his burden of showing a probability of prevailing on the merits. We agree with these points and reverse the order.
Other statutory references are also to the Code of Civil Procedure unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
A. Dissolution Action
Judy and Richard married in 2005. On March 10, 2009, Judy filed a petition for dissolution. The petition states there are no children of the marriage and no community or quasi-community assets or debts subject to court disposition.
We grant Judy's unopposed motion, dated April 1, 2011, to augment the record with court documents from the dissolution action. (Evid. Code, § 452, subd. (d).) For convenience, we take some facts from our opinion in the dissolution action. (Shapiro v. Shapiro (July 14, 2010, D055297) [nonpub. opn.].)
On March 17, Judy obtained a temporary restraining order (TRO) against Richard on the ground he abused her verbally and threatened her, and he slammed a door on her leg causing a four-inch bruise. The TRO required Richard to move out of the couples' apartment immediately and take only his personal belongings.
Richard then applied for his own TRO. He claimed Judy had physically abused him several times. He sought $8,000 for "lost savings" in the form of cash, gold coins and money from a checking account, $3,000 for "lost work" and an undetermined amount for being forced to live on the street as a result of Judy's TRO issued the previous day. In answer to Judy's TRO, Richard denied any wrongdoing. He claimed she lied about how she got the bruise on her leg, and that she got it three weeks earlier when she was cleaning his van and slipped off the passenger seat and scraped her leg on the door latch.
At an April 7, 2009 hearing, the court declined to issue any restraining orders. The court continued Judy's exclusive use and possession of the couples' apartment and ordered her to accommodate Richard's retrieval of personal items from the apartment.
On April 8, 2009, Judy again obtained a TRO against Richard. She claimed that after the April 7 hearing, he entered the couples' apartment without her permission by removing a deadbolt from the door. It appeared that he had been in the apartment for at least two hours as he had showered, eaten and been working on the computer when Judy arrived with police. She alleged that several of her personal items were missing, including jewelry. Police arrested Richard for breaking and entering and helped Judy obtain a five-day emergency protective order, which expired on April 14. Police found some, but not all, of Judy's missing items in Richard's van. On April 29, 2009, the court granted Judy a three-year protective order.
Richard did not timely answer the petition for dissolution, and in May 2009, at Judy's request, the court entered a default judgment against him. The judgment states the parties would have single status in September 2009, and "[t]here are no community assets, retirement benefits or debts of the parties. The court's jurisdiction to award spousal support to either party is terminated." Richard appealed and this court affirmed the judgment. (Shapiro v. Shapiro, supra, D055297.) B. Current Action
In June 2009 Richard, in propria persona, filed a civil action against Judy. The original complaint listed numerous causes of action on the face sheet, such as "felony perjury" and "grand theft" (capitalization omitted), but the body of the complaint contained no separate causes of action. After Judy demurred and filed motions to strike, he filed a first amended complaint (FAC). The FAC contains causes of action for malicious prosecution, assault and battery, invasion of privacy, conspiracy, aiding and abetting, negligence, intentional and negligent infliction of emotional distress, and conversion.
The FAC also named Judy's parents as defendants, but all causes of action against them were dismissed in the anti-SLAPP proceedings.
Judy brought a special motion under the anti-SLAPP statute to strike portions of the FAC, including the cause of action for conversion. She argued the statute is applicable to the conversion claim because it arises from her petitioning activity in the dissolution case. She also argued Richard cannot show a probability of prevailing on the claim since her alleged conduct is protected by the litigation privilege (Civ. Code, § 47, subd. (b).)
After a hearing, the court took the matter under submission. On June 1, 2010, the court issued an order granting the anti-SLAPP motion on the conversion count. The order states the "gravamen of the [conversion] cause of action is that [Judy] did not disclose community property assets in the dissolution proceedings, thereby depriving [Richard] of possession of such property." The order explains that because the anti-SLAPP statute is applicable, the burden shifted to Richard to show a probability of succeeding on the merits, and he did not meet the burden because the cause of action is barred by the litigation privilege.
The court also granted the anti-SLAPP motion on the FAC's causes of action for aiding and abetting, conspiracy, malicious prosecution, and intentional infliction of emotional distress.
Judy then answered the FAC and filed a cross-complaint against Richard for battery and negligence. The cross-complaint is based on the alleged incident in which he slammed a door on her leg.
In July 2010 Richard filed a motion the court interpreted to be a motion for reconsideration of its anti-SLAPP ruling. After a hearing, the court took the matter under submission. On September 16, 2010, the court issued an order denying the motion as to the conversion cause of action. The court found the anti-SLAPP statute is inapplicable to it because, while it alleges both protected and unprotected conduct, its "principal thrust" arises from unprotected conduct, Judy's withholding of Richard's personal property.
DISCUSSION
I
Legal Principles
A
Anti-SLAPP Statute
In 1992 the Legislature enacted section 425.16, known as the anti-SLAPP statute, to allow a court to dismiss certain types of unmeritorious claims at an early stage in the litigation. (Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1159.) Section 425.16 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 California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) The constitutional right of petition encompasses " ' " 'the basic act of filing litigation.(Navellier v. Sletten (2002) 29 Cal.4th 82, 90.)
In deciding an anti-SLAPP motion, the trial court must "engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . 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.) "In deciding whether the initial 'arising from' requirement is met, a court considers 'the pleadings, and supporting and opposing affidavits stating the facts [on] which the liability or defense is based.' " (Nevellier v. Sletten, supra, 29 Cal.4th at p. 89.) "Section 425.16 is 'construed broadly, to protect the right of litigants to " 'the utmost freedom of access to the courts without [the] fear of being harassed subsequently by derivative tort actions.' " ' " (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 35.)
"[W]here a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is 'merely incidental' to the unprotected conduct." (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103 (Mann); Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287-1288 ["A mixed cause of action is subject to section 425.16 if at least one of the underlying acts is protected conduct, unless the allegations of protected conduct are merely incidental to the protected activity."].) In Mann, this court held that because defendants' protected reports "formed a substantial part of the factual basis for the defamation and trade libel claims, these claims are subject to the anti-SLAPP statute even though they are also based on statements that were not subject to the statute, i.e., they are 'mixed' causes of action." (Mann, supra, 120 Cal.App.4th at p. 104.)
The court's ruling on a special motion under section 425.16 is subject to our independent review. (Annette F. v. Sharon S., supra, 119 Cal.App.4th at p. 1159.)
B
Conversion
Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff's ownership or right to possession of the property at the time of the conversion; the defendant's conversion by a wrongful act or disposition of property rights; and damages.(Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 45.) " 'It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.' " (Hartford Financial Corp. v. Burns (1979) 96 Cal.App.3d 591, 598.)
II
First Prong: Applicability of Anti-SLAPP Statute
Judy contends the court erred by finding the anti-SLAPP statute is inapplicable to the conversion cause of action. We agree.
The conversion cause of action is mixed because it contains allegations of both protected and unprotected activity. As to unprotected activity, it alleges Judy "refused to return, stole, sold, destroyed, or allowed . . . items to be abandoned—which were rightly and exclusively owned" by Richard. The items include two one-ounce precious gold coins, work tools, tax records and retirement portfolio information, four "cherished" James Taylor compact discs, a vintage guitar, a television, a camping tent, a jacket, a bicycle, and exercise equipment.
The conversion cause of action also alleges Judy converted Richard's interest in numerous items of community property by falsely representing to the family court that there was no community property subject to disposition. Among the undisclosed community property items are cash from a house safe, cash from a coffee can kept in the kitchen pantry, bank accounts, credit cards, a van, a book, and two audio recorders.
Further, the conversion cause of action specifically incorporates by reference 64 paragraphs appearing in the FAC's cause of action for malicious prosecution (the incorporated allegations), "due to [Judy's] official concealment re her false 'Disclosure of Community Property' document in the Family Law Court, by way of not at all giving the true scope and nature of all the marital community property." Several of the incorporated paragraphs allege Judy obtained a TRO in the dissolution action by lying under oath about how she got the bruise on her leg. More than four dozen of the incorporated paragraphs allege Judy failed to apprise the family court of numerous community property items, including a computer and related products; digital camera; bed, couch, and other furniture pieces; two designer lampshades; microwave, high-end pots, pans, skillets, cooking utensils and other kitchenware; designer living room rug; lacquered wooden armoire; radio; jewelry; and the portion of her retirement account accrued during the marriage.
Contrary to Richard's position, the allegations pertaining to Judy's alleged failure to reveal community property to the family court are not merely "incidental" to the allegations of unprotected activity. The term "incidental" is defined as "subordinate, nonessential, or attendant in position or significance"; "occurring merely by chance or without intention or calculation"; "lacking effect, force, or consequence"; and "presented purposely but as though without consideration or intention." (Webster's 3d New Internat. Dict. (1993) p. 1142.) The allegations pertaining to fraud on the family court are substantial and significant, and thus the anti-SLAPP statute is applicable to it.
Richard argues we should not consider the incorporated paragraphs because he represented himself and did not understand pleading principles. He asserts he learned about incorporating paragraphs from one cause of action into another cause of action from a practice book, and he was unaware of the potential consequences of incorporation on an anti-SLAPP motion. It is well settled, however, that "[w]hen a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys." (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638.)
III
Second Prong: Probability of Prevailing on the Merits
Because the anti-SLAPP statute applies, the burden shifted to Richard to present a prima facie showing on the merits. The court did not reach this issue because of its erroneous ruling on the applicability of section 425.16. Since a de novo standard of review applies, we may resolve the matter.
"[T]o establish a probability of prevailing on the claim [citation], a plaintiff responding to an anti-SLAPP motion must ' "state[] and substantiate[] a legally sufficient claim." ' [Citations.] Put another way, the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
"Where a cause of action refers to both protected and unprotected activity and a plaintiff can show a probability of prevailing on any part of its claim, the cause of action is not meritless and will not be dismissed under the anti-SLAPP procedure. [¶] Stated differently, the anti-SLAPP procedure may not be used like a motion to strike under section 436, eliminating those parts of a cause of action that a plaintiff cannot substantiate. Rather, once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands. Thus, a court need not engage in the time-consuming task of determining whether the plaintiff can substantiate all theories presented within a single cause of action and need not parse the cause of action so as to leave only those portions it has determined have merit." (Mann, supra, 120 Cal.App.4th at p. 106.)
In Mann, this court explained that "a defendant has other options to eliminate theories within a cause of action that lack merit or cannot be proven. For example, a defendant can file a motion to strike a particular claim under section 436 concurrently with its anti-SLAPP motion." (Mann, supra, 120 Cal.App.4th at p. 106.)
--------
Richard did not meet his burden. His opposition to Judy's motion is not supported by citations to any evidence. He submitted no affidavit or other evidence supporting the allegations in the conversion cause of action as to Judy's withholding of his separate property. He submitted a declaration, but it merely states, "I have in my secured possession direct conclusive proof of [Judy's] physical violent crimes and stealing against me." He did not adduce the supposed proof. Further, there is no indication the court granted his request for judicial notice, and in any event, it is mostly nonsensical. In his respondent's brief, he does not cite any evidence pertaining to the merits. We have only the allegations of the conversion cause of action, which do not satisfy Richard's evidentiary burden. (San Diego Police Officers Assn. v. City of San Diego (1994) 29 Cal.App.4th 1735, 1744-1745.)
Moreover, Richard cannot prevail on the conversion cause of action insofar as it alleges Judy's failure to disclose community property to the family court. Under Civil Code section 47, subdivision (b), a "privileged publication" includes one made in any judicial proceeding. "The litigation privilege in [Civil Code] section 47 applies to 'any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]' " (Rohde v. Wolfe, supra, 154 Cal.App.4th at p. 37.) "As with [Code of Civil Procedure] section 425.16, courts broadly construe [Civil Code] section 47 to protect a litigant's right to access the courts without fearing subsequent, harassing derivative tort actions." (Ibid.) "The litigation privilege under [Civil Code] section 47 is ' "an 'absolute' privilege, and it bars all tort causes of action except a claim of malicious prosecution." [Citation.]' " (Id. at p. 38.) "The privilege in [Civil Code] section 47 is 'relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense plaintiff must overcome to demonstrate a probability of prevailing." (Ibid.)
DISPOSITION
We reverse the order on the anti-SLAPP motion to the extent it pertains to the conversion cause of action of the first amended complaint. We affirm the order in all other respects. Appellant is awarded costs on appeal.
_________
McCONNELL, P. J.
WE CONCUR:
_________
HALLER, J.
_________
AARON, J.