Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. LC080133, Leon S. Kaplan, Judge.
Law Office of Wayne E. Beaudoin and Wayne E. Beaudoin for Plaintiff and Appellant.
Gibson Law and Richard Gibson for Defendants and Respondents.
DOI TODD, Acting P. J.
Appellant TM-MTM, Inc. appeals from an order granting a special motion to strike under the “anti-SLAPP statute” (Code Civ. Proc., § 425.16). We affirm. The trial court properly granted the motion because respondents Steinberg, Barness, Glasgow & Foster, LLP (SBGF) and Daniel I. Barness met their burden of demonstrating that the complaint against them arose from the protected litigation activity of enforcing a judgment, and appellant failed to show that it had a probability of prevailing on its claims.
SLAPP is an acronym for strategic lawsuits against public participation. Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure. An order granting or denying a special motion to strike under section 425.16 is appealable. (§ 904.1, subd. (a)(13).)
FACTUAL AND PROCEDURAL BACKGROUND
In a prior lawsuit, SBGF sued its client, Bell Cab Co., Inc. (Bell), for unpaid attorney fees and obtained a judgment in the amount of $48,683.58. Five years later when Bell had failed to pay the judgment, respondents filed a notice pursuant to section 708.710 et seq. seeking to garnish funds owed by the City of Los Angeles to Bell under contracts between Bell and the City. SBGF sought to garnish the amount of the judgment, plus accrued interest of $25,323.80, for a total of $74,012.38. Thereafter, the City processed two payments owed to Bell totaling $74,425.18, and deposited the funds in the superior court.
Sections 708.720, 708.730 and 708.750 provide that if a public entity owes money to a judgment debtor, the money may be applied to satisfy the money judgment against the judgment debtor when the judgment creditor files with the court and the public entity an abstract of the money judgment and an accompanying affidavit that states the exact amount due. The public entity shall then deposit the money with the court.
Appellant then filed a third-party claim in that same action, seeking to have the garnished funds released to it. Following a hearing on the matter, the trial court issued an “order determining validity of third party claim,” which stated: “On proof made to the satisfaction of the court and good cause appearing therefor, IT IS ADJUDGED that third party claimant TM-MTM, Inc.,... fails to establish the third party claim procedure of CCP § 720.110 et seq. is applicable to the type of garnishment at issue in this matter. Section 720.110 applies only to personal property levied under a writ of attachment, writ of execution, prejudgment or postjudgment writ of possession or a writ of sale. Third party claimant fails to show that any of these procedures were utilized by judgment creditor. Third party claimant also fails to establish that the third party claims process is applicable to garnishments directed to public entities pursuant to CCP § 708.710 et seq. A procedure for a claim of exemption is set forth in CCP § 708.770. Third party claimant fails to establish that the funds are due to it, rather than to judgment debtor Bell Cab Company, Inc. The contracting parties are Bell Cab and the City and the language of the agreements (Exhibit C to moving papers) reveals third party claimant’s status as ‘management’ for Bell Cab Cooperative (presumably the former name of Bell Cab Co., Inc.).” The court released the funds to respondents.
Appellant then filed in a different courthouse the instant action against respondents for (1) “recovery of possession of property,” (2) conversion, (3) declaratory relief, and (4) constructive trust. The complaint alleges the following: Appellant is the exclusive management company for Bell, which is separately incorporated from appellant and a distinct business entity; pursuant to both a contractual agreement between Bell and the City and a city ordinance, Bell is obligated to participate in the City’s Cityride program, by which Bell’s taxicab drivers must accept Cityride coupons from eligible disabled and senior citizens in lieu of payment; Bell’s taxicab drivers then submit the coupons to appellant for processing and reimbursement twice a month; after the City submits a reimbursement check to Bell, Bell then “assigns” the entire check to appellant to administer and distribute to the taxicab drivers.
In response to the complaint, respondents filed an anti-SLAPP motion. The trial court granted the motion on the grounds that respondents met their burden of demonstrating the application of the anti-SLAPP statute and appellant failed to demonstrate a probability of prevailing at trial because the action is barred by the litigation privilege and res judicata. This appeal followed.
DISCUSSION
I. The Anti-SLAPP Statute and the Standard of Review.
The anti-SLAPP statute is aimed at curbing “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a); Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738–739.) The statute provides in relevant part: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States 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).) An act “in furtherance of” the right of petition or free speech includes “any written or oral statement or writing made before a... judicial proceeding”; “any written or oral statement or writing made in connection with an issue under consideration or review by a... judicial body”; “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 “any other conduct in furtherance of the exercise of the constitutional right of petition... of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e)(1)–(4).)
There are two components to a motion to strike brought under section 425.16. Initially, the party challenging the lawsuit has the threshold burden to show that the cause of action arises from an act in furtherance of the right of petition or free speech. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Once that burden is met, the burden shifts to the complaining party to demonstrate a probability of prevailing on the claim. (Zamos v. Stroud, supra, at p. 965; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) To satisfy this prong, 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.’” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; see also DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 568 [to establish a probability of prevailing, a plaintiff must substantiate each element of the alleged cause of action through competent, admissible evidence].) “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.)
We independently review the record to determine both 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. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) 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); Flatley v. Mauro (2006) 39 Cal.4th 299, 326.)
II. The Trial Court Properly Granted the Anti-SLAPP Motion.
A. Protected Activity
Our Supreme Court has explained: “In short, the statutory phrase ‘cause of action... arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s 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, supra, 29 Cal.4th at p. 78.) “‘“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.” [Citation.]’” (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1478.) “The principal thrust or gravamen of the claim determines whether section 425.16 applies.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 472; Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) “‘A cause of action “arising from” defendant’s litigation activity may appropriately be the subject of a section 425.16 motion to strike.’ [Citations.] ‘Any act’ includes communicative conduct such as the filing, funding, and prosecution of a civil action.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)
Appellant argues that its lawsuit is not aimed at penalizing SBGF for utilizing the judicial process of garnishment to enforce its judgment and that the manner in which SBGF acquired the funds is merely incidental and collateral to the core of its claims, which is simply to recover the funds it contends rightfully belong to it. But the problem with this argument is that SBGF would not have acquired the funds in the first place without using the judicial process. As City of Cotati v. Cashman, supra, 29 Cal.4th at page 78, makes clear, the act underlying the challenged lawsuit must itself have been protected activity. The only actions taken by SBGF were to (1) sue Bell, (2) obtain a judgment against Bell, and (3) levy against funds belonging to Bell. These are not activities incidental to litigation activity; they are litigation activities and therefore are protected. An action to enforce a judgment comes within the litigation privilege (Civ. Code, § 47, subd. (b)) and is a protected activity under the anti-SLAPP statute. (Rusheen v. Cohen, supra, 37 Cal.4th at pp. 1063–1065; O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134–135.) Thus, it is of no consequence that appellant did not intend to penalize SBGF’s protected activities. “[T]he ‘arising from’ prong encompasses any action based on protected speech or petitioning activity as defined in the statute..., regardless of whether the plaintiff’s lawsuit was intended to chill... or actually chilled... the defendant’s protected conduct.” (Martinez v. Metabolife Internat., Inc., supra, 113 Cal.App.4th at p. 187.)
B. No Demonstration of Probability of Prevailing
To satisfy the burden of showing the probability of prevailing on its claims (see § 425.16, subd. (b)(1)), a plaintiff must demonstrate that the complaint is both legally sufficient and, assuming its proffered evidence is believed, supported by facts sufficient to sustain a favorable judgment. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88–89.) In the present case, the trial court correctly ruled that appellant cannot satisfy this burden.
1. Litigation Privilege
As noted above, the trial court concluded that appellant’s action was barred by the litigation privilege. This privilege provides that a “publication or broadcast” made as part of a “judicial proceeding” is privileged. (Civ. Code, § 47, subd. (b).) This privilege is absolute in nature, applying “to all publications, irrespective of their maliciousness.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 216.) “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.” (Id. at p. 212.) Its principal purpose “is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (Id. at p. 213.)
The litigation privilege “is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1057.) Thus, in Rusheen, our Supreme Court extended the litigation privilege to postjudgment enforcement efforts. (Id. at p. 1062–1063.) In doing so, the Rusheen court cited with approval Brown v. Kennard (2001) 94 Cal.App.4th 40, 49–50, which stated that “judgment enforcement efforts, as an extension of a judicial proceeding and related to a litigation objective, are considered to be within the litigation privilege.” Because there is no basis for liability here, other than enforcement of the judgment, the litigation privilege bars appellant’s action against respondents.
2. Res Judicata
In addition to the bar based on the litigation privilege, respondents argue that appellant’s action would also be barred by the doctrines of res judicata or collateral estoppel. “‘Res judicata’ describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’ (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896–897, fn. omitted.)
In the prior action, following a hearing in which “proof [was] made to the satisfaction” of the trial court, the court ruled that appellant had failed to establish that the garnished funds were due to it, rather than to Bell, finding that the contracting parties were Bell and the City of Los Angeles. Here, appellant is making the same claim that the garnished funds were due to it. Appellant makes two arguments on appeal as to why res judicata does not apply here. First, appellant refers to the declaration of its attorney, which states that the prior ruling was made without prejudice. We note that the written ruling itself does not state that it was being made without prejudice. In any event, because appellant does not cite to any authority to show that the doctrine of res judicata is not applicable in such an instance, we give the argument no consideration. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366.) Second, appellant points out that the prior ruling was made in the confines of a third-party claim process that was determined to be inapplicable. While it is true that the court in the garnishment proceedings found that appellant had failed to establish that the procedure was applicable to appellant’s type of claim, the court went on to specifically find that appellant had failed to establish the funds were due to it rather than Bell. But in light of our finding that appellant’s action is barred by the litigation privilege, we need not reach the issue of res judicata here.
3. Causes of Action
Even if the litigation privilege did not bar appellant’s action, appellant cannot establish the probability of prevailing on any of its causes of action. Appellant’s first cause of action is for “recovery of possession of property.” Respondents argue that there is no such cause of action. Appellant concedes that the instant action was not brought under California’s Enforcement of Judgments Law (§ 680.010 et seq.), but argues that “[i]t follows that the same burden is placed on a third party claimant in a separate action for recovery of possession of property or declaratory relief” to establish that the subject property belongs to it. The problem with appellant’s argument, and indeed with each of its causes of action, is that appellant cannot establish entitlement to the garnished funds in place of Bell. The contract pursuant to which the City owed the funds was between the City and Bell. Appellant does not claim that it was a party to this contract. Moreover, appellant’s complaint admits that appellant and Bell are separate and distinct entities; that the City pays the money to Bell; and that appellant only comes into possession of the money after Bell “assigns” the money to appellant. Thus, while appellant may have a right to possession of the money after Bell assigns the money to appellant, it has no right to receive the money directly from the City. On this record, this right belongs exclusively to Bell. As such, respondents, as the judgment creditor, had the right to garnish the money under the procedures set forth in the Enforcements of Judgments Law. Appellant cannot establish that it is entitled to “recover” the money.
Appellant’s second cause of action is for conversion. “Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.) But, again, for the same reasons just discussed, appellant cannot establish its ownership rights to the garnished funds and cannot establish that respondents acquired the funds by a wrongful act.
Appellant’s third cause of action is for declaratory relief. Appellant seeks a judicial declaration that it is the rightful owner of the garnished funds. But appellant has no factual or legal basis for establishing that it is entitled to receive the money as opposed to Bell.
Appellant’s fourth cause of action is for constructive trust. Appellant concedes that a constructive trust is not a cause of action but a remedy. “‘A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner. [Citations.] The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a person from taking advantage of his or her own wrongdoing.’” (Burlesci v. Petersen, supra, 68 Cal.App.4th at p. 1069.) “‘[A] constructive trust may only be imposed where the following three conditions are satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it.’” (Ibid.) Again, appellant has not demonstrated a right to the funds or that they were wrongfully acquired.
C. Appellant’s Lack of Remedy Argument
Finally, appellant argues that if we affirm the trial court’s grant of respondents’ special motion to strike, appellant will be left “with no remedy for the wrong that has been done to it.” Appellant claims this is so because California’s Enforcement of Judgments Law provides no procedure for third parties to make a claim of superior right to funds held by a local public agency, only an exemption procedure for the garnishee. (See §§ 708.750 & 708.770, subd. (b).) But appellant’s argument ignores that it cannot establish that a wrong has been done to it or that there is any probability that it can prevail in an action against respondents.
DISPOSITION
The order granting the anti-SLAPP motion is affirmed. Respondents are entitled to their costs on appeal.
We concur: ASHMANN-GERST, J., CHAVEZ, J.