McPherson vs. Donald & Lynn Southard, LLC

Demurrer to Complaint

Ulwelling Law’s unopposed requests for the Court to take judicial notice of filings in the Underlying Action, request numbers 1 and 4-15 are granted. (Evid. Code, § 452, subd. (d).) However, the Court may not take judicial notice of the truth of the matter stated in the documents. (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 659-660.) Judicial notice of other court records and files is limited to matters that are indisputably true. This generally means judicial notice is limited to the orders and judgments in the other court file, as distinguished from the contents of documents filed therein. (Fremont Indem.

Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113.) The court cannot accept as true the contents of pleadings or exhibits in the other action just because they are part of the court record or file. Such documents are inadmissible hearsay. (Day v. Sharp (1975) 50 Cal.App.3d 904, 914.)

Ulwelling Law’s unopposed request numbers 2 and 3 for the Court to take judicial notice of documents recorded with the County Recorder are granted. The Court may take judicial notice of documents recorded with the County Recorder’s Office; however, that does not mean it may take judicial notice of factual matters stated therein. (Poseidon Development, Inc. v. Woodland Lane States, LLC (2007) 152 Cal.App.4th 1106, 1117.) Courts may also take judicial notice of a variety of matters that can be deduced from the documents, such as the parties, dates, and legal consequences of a series of recorded documents relating to a real estate transaction. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.)

Civil Code Section 1714.10

Ulwelling Law demurs to the first cause of action for aiding and abetting breach of fiduciary duty and third cause of action for aiding and abetting unlawful fraudulent transfer on the ground that the causes of action are barred because Plaintiff did not comply with Civil Code section 1714.10.

Civil Code section 1714.10, subdivision (a), prohibits a cause of action “against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney's representation of the client,” unless the court “enters an order allowing the pleading that includes the claim for civil conspiracy to be filed.” The order must be sought by a verified petition, accompanied by the proposed pleading and supporting affidavits stating the facts upon which the liability is based. The statute requires a determination “that the party seeking to file the

pleading has established that there is a reasonable probability that the party will prevail in the action.” (Civ. Code, § 1714.10, subd. (a).) The purpose of section Civil Code section 1714.20 is to “weed out the harassing claim of conspiracy that is so lacking in reasonable foundation as to verge on the frivolous.” (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 815 [citing Evans v. Pillsbury, Madison & Sutro (1998) 65 Cal.App.4th 599, 604].)

Excepted from this requirement, is any cause of action “against an attorney for a civil conspiracy with his or her client, where (1) the attorney has an independent legal duty to the plaintiff, or (2) the attorney’s acts go beyond the performance of a professional duty to serve the client and involve a conspiracy to violate a legal duty in furtherance of the attorney’s financial gain.” (Civ. Code, § 1714.10, subd. (c).) The “independent duty” exemption may arise “when an attorney engages in conduct that goes ‘way beyond the role of [a] legal representative.’” (Klotz v.

Milbank, Tweed, Hadley & McCloy (2015) 238 Cal.App.4th 1339, 1351, citation omitted.) Further, “attorneys, like anyone else, have an independent duty to avoid [committing fraud].” (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc., supra, 131 Cal.App.4th at p. 825; Rickley v. Goodfriend (2013) 212 Cal.App.4th 1136, 1151 [“It is well established that an attorney has an independent legal duty to refrain from defrauding nonclients”]. For the latter exception to apply, “there must be allegations the attorneys were acting ‘as individuals for their individual advantage’ and not solely on behalf of the principal.” (Cortese v.

Sherwood (2018) 26 Cal.App.5th 445, 460.)

A cause of action for aiding and abetting may fall within the ambit of section 1714.10. (Howard v. Superior Court (1992) 2 Cal.App.4th 745, 749.) The Howard Court noted “while aiding and abetting may not require a defendant to agree to join the wrongful conduct, it necessarily requires a defendant to reach a conscious decision to participate in tortious activity for the purpose of assisting another in performing a wrongful act. A plaintiff's object in asserting such a theory is to hold those who aid and abet in the wrongful act responsible as joint tortfeasors for all damages ensuing from the wrong.” (Id.)

Plaintiff alleges Ulwelling Law represented the Southards in the Underlying Action in which Plaintiff alleged the Southards breached their fiduciary duties to Western Tap. (Complaint, ¶¶ 1, 2, 27, and 28.) Plaintiff alleges the Southards purchased the Subject Property through their Southard 2007 Trust on or about 12/7/2015. (Id., ¶¶ 2 and 26, Exhibit B.) Thereafter, the Southard 2007 Trust quitclaimed

the Subject Property to the Southard LLC on or about 6/10/2016. (Id., ¶¶ 26, Exhibit C.) On or about October 2019, Ulwelling Law, counsel for the Southards, recorded a deed of trust against the Subject Property. (Id., ¶¶ 28 and 41, Exhibit D.) The deed of trust reflects it was entered into between the Southard LLC and Ulwelling Law. (Id., Exhibit D.) While the appeal of the Underlying Action was pending, the Southard LLC sold the property on or about 7/6/2022 and Ulwelling Law released the lien against the Subject Property. (Id., ¶¶ 35, 36, 46, and 48.)

Plaintiff alleges Ulwelling Law aided and abetted in the Southards’ breach of fiduciary duty by facilitating, encouraging, assisting, or abetting in the alienation of the Subject Property. (Id., ¶ 35.) Plaintiff also alleges Ulwelling Law benefitted from Ulwelling Law’s recording and release of the deed of trust when the Subject Property was sold in 2022. (Id., ¶ 48.)

In support of the third cause of action, Plaintiff incorporates the allegations above and alleges Ulwelling Law received money from the sale of the Subject Property in 2022, while the appeal was pending, and that Ulwelling Law aided and abetted in hindering, delaying, and defrauding Plaintiff from receiving the Subject Property and monies flowing from the sale of the Subject Property. (Complaint, ¶¶ 54 and 57.) Plaintiff alleged Ulwelling Law recorded the deed of trust to help the Southards pay their attorneys’ fees. (Id., ¶ 28.)

Plaintiff has not alleged sufficient facts to show Ulwelling Law’s recording and releasing the deed of trust goes beyond the performance of a professional duty to serve the client, or that the conduct violates a legal duty in furtherance of Ulwelling Law’s financial gain. Plaintiff’s complaint does not allege facts to show section 1714.10 does not apply. There is no dispute that Plaintiff did not comply with section 1714.10. Accordingly, the demurrer is sustained with 15 day leave to amend.

Statute of limitations “In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

The parties concede a four-year statute of limitations applies to each of the three causes of action. (Demurrer, 9:26-10:5, 12:8-10, and 15:15-20; Opposition, 12:14-19, 17:15-16, and 19:16-19.)

Plaintiff’s Complaint expressly alleges Ulwelling Law aided and abetted in the Southards’ breach of fiduciary duty and aided in the

Southards’ unlawful fraudulent transfer by facilitating, encouraging, assisting, or abetting in the alienation of the Subject Property, which occurred July 6, 2022. (Complaint, ¶¶ 3, 35, 46, 48, 54, and 57.) Plaintiff also alleged Ulwelling Law hindered, delayed, and defrauded Plaintiff from receiving the Subject Property and monies flowing from the sale of the Subject Property when the Subject Property was sold and resold in July 2022 and November 2022. (Id., ¶¶ 3, 35, 46, 48, 50, and 52.) Plaintiff commenced this action on July 6, 2025, less than 4 years after the purported fraudulent transfer. Demurrer is overruled.

Agent immunity rule

“The agent’s immunity rule emanates from a further holding in Wise that: ‘Agents and employees of a corporation cannot conspire with their corporate principal or employer where they act in their official capacities on behalf of the corporation and not as individuals for their individual advantage.’ (Wise, supra, 223 Cal.App.2d at p. 72, 35 Cal.Rptr. 652.) The rule ‘derives from the principle that ordinarily corporate agents and employees acting for or on behalf of the corporation cannot be held liable for inducing a breach of the corporation's contract since being in a confidential relationship to the corporation their action in this respect is privileged.’ (Id. at pp. 72–73, 35 Cal.Rptr. 652.)

We have endorsed and applied the agent's immunity rule as expressed in Wise (e.g., Shoemaker v. Myers (1990) 52 Cal.3d 1, 24–25, 276 Cal.Rptr. 303, 801 P.2d 1054; Gruenberg, supra, 9 Cal.3d at p. 576, 108 Cal.Rptr. 480, 510 P.2d 1032; Doctor's Co., supra, 49 Cal.3d at p. 45, 260 Cal.Rptr. 183, 775 P.2d 508).” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 512, fn 4.)

It is well-established that, so long as Ulwelling Law was acting within his official capacity as an agent for the Southards, there is no liability for “conspiracy” between an agent and its principal. (Pavicich v. Santucci (2000) 85 Cal.App.4th 382, 394 [“under the agent's immunity rule, an agent is not liable for conspiring with the principal when the agent is acting in an official capacity on behalf of the principal”].)

Here, the claim is one for aiding and abetting, rather than conspiring. Ulwelling Law cites to no legal authority to show whether this rule applies to aiding and abetting causes of action. In addition, Plaintiff did not allege Ulwelling Law was acting within its official capacity as the Southards’ attorney in recording or releasing the deed of trust. Accordingly, Ulwelling Law did not show the agent immunity rule applies. Demurrer is overruled.

Although Ulwelling Law contends it demurs to the three causes of action on the ground that Plaintiff failed to allege sufficient facts, this ground is not raised in the notice of demurrer and not addressed in the memorandum. (Notice of Errata, ROA No. 68, Exhibit A, 2:7; but see, generally, Notice of Demurrer, ROA No. 59 and Notice of Errata, Exhibit A.) Accordingly, the Court declines to consider whether Plaintiff alleged sufficient facts to state the three causes of action.

Motion to Strike - Anti SLAPP

Ulwelling Law’s unopposed requests for the Court to take judicial notice of filings in McPherson vs. Southard, case number 30-2018- 00964601 (“Underlying Action”), request numbers 1 and 4-15 are granted. (Evid. Code, § 452, subd. (d).) However, the Court may not take judicial notice of the truth of the matter stated in the documents. (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 659-660.) Judicial notice of other court records and files is limited to matters that are indisputably true.

This generally means judicial notice is limited to the orders and judgments in the other court file, as distinguished from the contents of documents filed therein. (Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113.) The court cannot accept as true the contents of pleadings or exhibits in the other action just because they are part of the court record or file. Such documents are inadmissible hearsay. (Day v. Sharp (1975) 50 Cal.App.3d 904, 914.)

Ulwelling Law’s unopposed request numbers 2 and 3 and Plaintiff’s unopposed requests for the Court to take judicial notice of documents recorded with the County Recorder are granted. The Court may take judicial notice of documents recorded with the County Recorder’s Office; however, that does not mean it may take judicial notice of factual matters stated therein. (Poseidon Development, Inc. v. Woodland Lane States, LLC (2007) 152 Cal.App.4th 1106, 1117.) Courts may also take judicial notice of a variety of matters that can be deduced from the documents, such as the parties, dates, and legal consequences of a series of recorded documents relating to a real estate transaction. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.)

General legal authority regarding SLAPP motions

Code of Civil Procedure section 425.16 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.” This section is to be construed broadly. (Code Civ. Proc., § 425.16, subd. (a).)

“In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).)

The court’s determination of an anti-SLAPP motion is a two-step process. First, the court determines if the party moving to strike a cause of action has met its initial burden to show that the cause of action arises from an act in furtherance of the moving party’s right of petition or free speech. Then, if the court determines that showing has been made, the court determines whether the opposing party has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)

The nonmoving party establishes a probability of prevailing by showing that the claim has minimal merit. (Gruber v. Gruber (2020) 48 Cal.App.5th 529, 537; Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 825; see also, Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 211.) A claim has minimal merit if it 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 nonmoving party is credited. (Gruber v.

Gruber, 48 Cal.App.5th at 537.) The Court evaluates the moving party's evidence only to determine if it has defeated that submitted by the nonmoving party as a matter of law. (Id.)

Because of the amount of litigation that has arisen pursuant to this statute and the litigants’ confusion regarding this statute, the California Supreme Court further clarified the process as follows:

At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the

claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing. (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)

The defendant is not required to show her actions “are constitutionally protected under the First Amendment as a matter of law.” (Navellier, 29 Cal.4th at 94.) The first prong is met by showing the cause of action is based on a person’s “constitutional free speech and petitioning activity as defined in the anti-SLAPP statute.” (Id., at 95.)

There are four categories of protected speech for an anti-SLAPP motion (Code Civ. Proc., § 425.16, subd. (e)):

(1) statements made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

(2) statements 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) statements 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.

Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060 clarified that a claim “may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (See Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670 [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.].)

“Many Courts of Appeal...have taken care to respect the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim.” (Park, 2 Cal.5th at 1064.) An anti-SLAPP motion should be granted if liability is based on speech or petitioning activity itself. (Id., at 1065.)

To determine whether a cause of action is based on protected activity, the Court examines “‘the principal thrust or gravamen of a plaintiff’s cause of action to determine whether the anti-SLAPP statute applies.” (Okorie v. Los Angeles Unified School District (2017) 14 Cal.App.5th 574, 586.) The principal thrust is assessed by identifying the allegedly wrongful and injury-producing conduct that provides the foundation for the claim. (Id., at 586-587; see Renewable Resources Coalition, Inc. v. Pebble Mines Corp. (2013) 218 Cal.App.4th 384, 387 [The gravamen of an action is the allegedly wrongful and injury-producing conduct, not the damage which flows from said conduct.].)

“Where the protected activity will only be used as evidence in the case, and no claim is based on it, the protected activity is only incidental to the claims.” (Drell v. Cohen (2014) 232 Cal.App.4th 24, 29; see, Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 43, citing Baral, 1 Cal.5th at 394 [“Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.”].)

As the California Supreme Court clarified, “identification of causes of action arising from protected activity ordinarily occurs at the first step...At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” (Newport Harbor Offices & Marina, LLC, 23 Cal.App.5th at 43, citing Baral, 1 Cal.5th at 396; see Renewable Resources Coalition, Inc. v. Pebble Mines Corp. (2013) 218 Cal.App.4th 384, 396-397 [“[T] o determine the applicability of the anti-SLAPP statute, we look to the allegedly wrongful and injurious conduct of the defendant, rather than the damage which flows from said conduct.”].)

“[I]n ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Newport Harbor Offices & Marina, LLC, 23 Cal.App.5th at 44, citing Park, 2 Cal.5th at 1063.)

However, just identifying protected activity is not the only requirement in the first step. The defendant must identify the claims for relief supported by the allegations of protected activity. (Newport Harbor Offices & Marina, LLC, 23 Cal.App.5th at 43.)

Merits

Plaintiff’s complaint alleges three causes of action against Ulwelling Law: aiding and abetting breach of fiduciary duty; unlawful fraudulent transfer; and aiding and abetting unlawful fraudulent transfer.

Plaintiff’s complaint alleges Ulwelling Law recorded a deed of trust against the Subject Property Plaintiff contends in or about October 2019 to help pay the Southards’ attorneys’ fees in the Underlying Action, that the Subject Property was sold while an appeal of the Underlying Action was pending, and that Ulwelling Law permitted the sale by releasing its lien without protest and being paid its attorneys’ fees out of the sale of the Subject Property. (Complaint, ¶ 28, 35, 36, 38, 41, 45, 46, 48, 50-52, 54, 56, and 57.)

“Liability may ... be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1325- 1326, citing Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 846, 33 Cal.Rptr.2d 438; see also, American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1475;Rest.2d Torts, § 876.) “Mere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting.” (Id.)

Liability for aiding and abetting “depends on proof the defendant had actual knowledge of the specific primary wrong the defendant substantially assisted.” (American Master Lease LLC v. Idanta Partners, Ltd., 225 Cal.App.4th at 1475, citing Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1145.)

A fraudulent transfer claim under the Uniform Voidable Transactions Act is codified in Civil Code section 3439, et seq. “A fraudulent conveyance is a transfer by the debtor of property to a third person undertaken with the intent to prevent a creditor from reaching that interest to satisfy its claim.” (Kirkeby v. Superior Court of Orange County (2004) 33 Cal.4th 642, 648.)

Pursuant to Civil Code section 3439.04(a): A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if

the debtor made the transfer or incurred the obligation as follows: (1) With actual intent to hinder, delay, or defraud any creditor of the debtor. (2) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor either: (A) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction. (B) Intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor’s ability to pay as they became due.

To determine actual intent, factors to consider include: (1) Whether the transfer or obligation was to an insider. (2) Whether the debtor retained possession or control of the property transferred after the transfer. (3) Whether the transfer or obligation was disclosed or concealed. (4) Whether before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit. (5) Whether the transfer was of substantially all the debtor's assets. (6) Whether the debtor absconded. (7) Whether the debtor removed or concealed assets. (8) Whether the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred. (9) Whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred. (10) Whether the transfer occurred shortly before or shortly after a substantial debt was incurred. (11) Whether the debtor transferred the essential assets of the business to a lienor that transferred the assets to an insider of the debtor. (Civ. Code, § 3439.04(b).)

Although funding litigation may be considered protected activity, the gravamen of the complaint against Ulwelling Law is not Ulwelling Law helping to pay the Southards’ attorneys’ fees in the Underlying Action. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [“‘Any act’ includes communicative conduct such as the filing, funding, and prosecution of a civil action. (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 17–19, 43 Cal.Rptr.2d 350.) This includes qualifying

acts committed by attorneys in representing clients in litigation. (See, e.g., Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1086, 114 Cal.Rptr.2d 825; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1418–1420, 103 Cal.Rptr.2d 174.)”].) “A claim does not arise from constitutionally protected activity simply because it is triggered by such activity or is filed after it occurs.” (Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 283.) 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. (Id.)

Ulwelling Law relies on O’Neil-Rosales v. Citibank (South Dakota) N.A. (2017) 11 Cal.App.5th Supp. 1 to support its contention that recording the deed of trust is protected activity. In O’Neil-Rosales, the attorney recorded an abstract of judgment on behalf of the client and was not recording a deed of trust to secure the attorneys’ own attorneys’ fees. Nor was the attorney “funding” the litigation.

Like in Manlin v. Milner (2022) 82 Cal.App.5th 1004, the alleged protected use (funding litigation) may supply evidence to support the three causes of action; however, that does not convert the use itself into the basis for liability. (Manlin v. Milner (2022) 82 Cal.App.5th 1004, 1020.) Like Manlin, Plaintiff could have omitted the allegations regarding Ulwelling Law helping pay the Southards’ attorneys’ fees in the Underlying Action and still allege the same three causes of action against Ulwelling Law. (Id.)

Plaintiff does not allege Ulwelling Law aided and abetted a breach of fiduciary duty, engaged in an unlawful fraudulent transfer, or aided and abetted an unlawful fraudulent transfer by funding the Southards’ litigation. Ulwelling Law’s alleged misconduct is recording a deed of trust against the Subject Property, releasing the deed of trust while the appeal was pending on the Underlying Action, and receiving funds from the sale. Plaintiff alleges Ulwelling Law assisted in the alienation of the Subject Property through these actions. This is not protected activity.

Nonjudicial foreclosure proceedings are not protected activity under the anti-SLAPP. (Garretson v. Post (2007) 156 Cal.App.4th 1508, 1520-1521.) As the court in Garretson noted, “ ‘a nonjudicial foreclosure is a private, contractual proceeding, rather than an official, governmental proceeding or action.’” (Id., at p. 1521 [citing legislative history of section 2924].) In fact, “[n]onjudicial foreclosure merely provides a nonjudicial, private alternative to judicial foreclosure.” (Id.) The Garretson court concluded that plaintiff’s wrongful foreclosure claim was not based on any privileged action, but on the nonjudicial proceeding itself. (Id., at p. 1523.) “[I]t is not enough to show that the

act occurred in connection with an official proceeding authorized by law. Defendant also must show that the cause of action arose from protected speech or petitioning the government for redress of a grievance. Although the anti-SLAPP statute must be construed broadly, the Legislature did not intend to apply the statute to purely private transactions.” (Id., at 1524.)

Here, there is no dispute that Ulwelling Law recorded a deed of trust.

A deed of trust is practically and substantially only a mortgage with a power of sale. (Majestic Asset Management LLC v. The Colony at California Oaks Homeowners Assn. (2024) 107 Cal.App.5th 413, 424.) “A deed of trust thus creates a lien on property to secure the performance of some act.” (Id.) The purpose of a deed of trust is to make sure Ulwelling Law was paid for its services. Ulwelling Law was not simply seeking payment from property purportedly owned by the Southards. The property against which the deed of trust was recorded was held by the Southards’ limited liability company. Ulwelling Law has not shown recording a deed of trust or releasing a deed of trust is protected activity.

Plaintiff also contends that Ulwelling Law created shell companies for the purpose of executing the unlawful transfer, citing to paragraph 30 of the complaint. (Opposition, 14:10-11; see, Opposition, 11:12-14.) However, there is no such allegation in the Complaint.

Because the misconduct alleged is not protected activity, the Court need not determine whether Ulwelling Law’s conduct was illegal as a matter of law. The motion is denied.

Case Management Conference

Continued to July 20, 2026 at 9:00 a.m.

Order to Show Cause re: Dismissal for Failure to Serve

Continued to July 20, 2026 at 9:00 a.m.

Plaintiff to give notice.