Pullen v. Culloty CA1/5

Filed 3/10/15 Pullen v. Culloty CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

CARL M. PULLEN, Plaintiff and Appellant, A135954 v. SHELLEY CULLOTY et al., (Solano County Super. Ct. No. FCS039145) Defendants and Respondents.

Appellant Carl M. Pullen appeals the trial court’s orders denying his disqualification motion and granting respondents’ special motion to strike pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16.). We affirm. BACKGROUND In January 2012, appellant filed the instant complaint against his former wife, Shelley Culloty, and her former counsel, Michelle Woodruff and Divorce Legal Services.1 The complaint, filed in propria persona, alleged three causes of action: violation of civil rights, intentional infliction of emotional distress, and exemplary damages. The complaint set forth a number of allegations about respondents’ conduct in post-judgment dissolution proceedings involving the resolution of a community debt (hereafter referred to as the dissolution proceedings). Specifically, the complaint alleged respondents engaged in forgery, perjury, and subornation of perjury in connection with documents and other communications in the dissolution proceeding.

1 We refer to Woodruff and Divorce Legal Services collectively as Woodruff.

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Respondents filed an anti-SLAPP motion to strike all three causes of action.2 Appellant did not file a written opposition. Instead, shortly before the hearing on the anti-SLAPP motion, appellant filed three ex parte motions: to open limited discovery, to disqualify Woodruff’s counsel, and to stay proceedings. After hearing oral argument on all pending motions, the trial court denied appellant’s ex parte motions and granted respondents’ anti-SLAPP motion. Judgment issued in respondents’ favor. DISCUSSION I. Anti-SLAPP Motion The anti-SLAPP statute “allows a court to strike any cause of action that arises from the defendant’s exercise of his or her constitutionally protected rights of free speech or petition for redress of grievances.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 311–312 (Flatley).) “In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 (Rusheen).) “If the court finds the defendant has made the threshold showing, it determines then whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.) This requires the plaintiff to 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.” ’ ” (Ibid.) We independently review the trial court’s order granting the anti-SLAPP motion. (Id. at p. 1055.) A. Protected Activity Appellant does not dispute that his causes of action arise from respondents’ conduct in the dissolution proceedings, nor does he argue such conduct, if conducted in accordance with law, is not protected activity. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734 [party’s and attorney’s conduct in connection with