Shokohi v. Wells Fargo Bank CA1/1

Filed 3/13/15 Shokohi v. Wells Fargo Bank CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

EMIL SHOKOHI, Plaintiff and Appellant, A141708 v. WELLS FARGO BANK et al, (Alameda County Super. Ct. No. RG13676587) Defendants and Respondents.

Emil Shokohi filed this lawsuit against Wells Fargo Bank and two of its employees1 after losing an earlier suit involving the same defendants. The trial court granted Wells Fargo’s special motion to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP2 motion) after it found that Shokohi’s claims arose from defendants’ litigation activity in the earlier case and that Shokohi was unlikely to prevail on them. Shokohi appeals, but we affirm. PROCEDURAL BACKGROUND A. Before discussing the procedural history of this case, we discuss the history of the earlier one. That case was filed in San Luis Obispo County Superior Court in April 2012

1 The two employees are Hana Dye and Aubrey Kackmarick, who changed her name to Aubrey Nash in 2013. 2 SLAPP is an acronym for Strategic Lawsuit Against Public Participation. Orders issued under section 425.16 are appealable. (Code of Civ. Proc. §§ 425.16, subd. (h) and § 904.1, subd. (a)(13).) All further statutory citations are to the Code of Civil procedure unless otherwise indicated.

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(the April 2012 case). The complaint alleged that Wells Fargo staff improperly detained Shokohi in a branch bank after erroneously accusing him of depositing a forged check into his account. Shokohi’s claims included civil rights violations, false imprisonment, and intentional infliction of emotional distress. The court entered default judgment against Wells Fargo after Shokohi filed a proof of service showing the summons and complaint had been served on Wells Fargo, via personal service by the sheriff’s agent on “Hanna Dye—Manager” on April 5, 2012. Wells Fargo quickly moved to set aside the default judgment. It argued the complaint had been improperly served and Dye had failed to process the lawsuit properly due to excusable neglect. The motion included declarations under penalty of perjury from Nash and Dye. Nash, in her declaration, identified herself as the manager of Wells Fargo’s downtown San Luis Obispo branch. She declared that she received two copies of the summons and complaint by mail on April 9, 2012, but they did not include proofs of service and did not indicate that the summons and complaint had been personally delivered to Dye. Dye, in her declaration, stated that she was under extreme personal stress on April 5, 2012, the day the summons and complaint were served on her, due to a recent home burglary, had no recollection of signing a receipt for the summons, and failed to follow her customary practice of forwarding any summons she received to the Wells Fargo legal department. The trial court granted Wells Fargo’s motion to set aside default, and Wells Fargo then filed a motion for judgment on the pleadings. In November 2012, the trial court granted the motion. The judgment was subsequently affirmed on appeal by the Second District Court of Appeal.3 After judgment was entered by the trial court, Shokohi served Nash and Dye with special interrogatories about statements they made in their declarations supporting Wells