Tai v. Von Till CA1/4

Filed 9/20/13 Tai v. Von Till CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

CHI TAI etc., Plaintiff and Respondent, A136881 v. STEPHEN F. VON TILL, (Alameda County Super. Ct. No. RG12625924) Defendant and Appellant.

In this appeal, attorney Stephen F. Von Till (appellant), appeals from the overruling of his demurrer and the denial of his two related motions to strike the complaint of respondent Chi Tai, doing business as Peralta Auto Center, alleging appellant’s participation in a fraudulent transfer of real property and in a civil conspiracy (Fraudulent Transfer Action). The Fraudulent Transfer Action alleged that appellant had earlier filed a civil action in the Alameda County Superior Court on behalf of Alex Novak (Case No. HG07344892) against respondent in 2007, to recover damages for personal injuries Mr. Novak received as a result of an automobile accident that occurred in September 2005 (Personal Injury Action). Prior to trial of the Personal Injury Action, respondent served an offer to compromise under Code of Civil Procedure section 998 in the amount of $18,000.00, which Novak rejected. Thereafter, the Personal Injury Action proceeded to a jury trial and resulted in a defense verdict in favor of respondent. Judgment was entered in respondent’s favor on June 14, 2011, which included an award of costs. Ultimately, on December 14, 2011, an

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amended judgment was entered awarding respondent a total of $101,107.32 in costs, including expert witness fees. The Fraudulent Transfer Action complaint further alleged that, while the cost motion was pending, and before the amended judgment was entered, Mr. Novak, with the assistance of appellant, transferred his Fremont residence to his daughter, defendant Paula Novak. Soon after this transfer in September 2011, Mr. Novak died. On information and belief the complaint alleges that after Mr. Novak’s death, Paula Novak listed the residence for sale at a price of $384,000.00. After answering the Fraudulent Transfer Action complaint , on June 8, 2012, appellant filed a demurrer and motion to strike contending that the trial court erred in failing to dismiss the conspiracy claims because respondent failed to comply with Code of Civil Procedure section 1714.10, and because the actions alleged against appellant were subject to the litigation privilege (Civ. Code, § 47, subd. (b)). Defendant Paula Novak joined in the demurrer and motion to strike. The following month, appellant filed a separate motion to strike the Fraudulent Transfer Action against him under Code of Civil Procedure section 425.16, the anti-SLAPP statute.1 Both motions to strike, as well as appellant’s demurrer, were heard by the trial court on August 17, 2012, and denied and overruled, respectively. On October 16, 2012, appellant filed a notice of appeal from the denial of both motions to strike and the overruling of his demurrer. While the appeal in the Fraudulent Transfer Action was pending, Paula Novak filed an appeal from the adverse judgment entered against her in the Personal Injury Action. That appeal was assigned to Division Three of this district. Division Three filed its opinion in the Personal Injury Action appeal on May 24, 2013, reversing the judgment against Paula Novak, and remanding the case back to the trial court “for further proceedings consistent with this opinion.” Paula Novak was also awarded her costs