California Court of Appeal Sep 26, 2023 No. E080184Unpublished
Filed 9/26/23 Wynne v. Wynne CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
MARK WYNNE et al.,
Plaintiffs and Respondents, E080184
v. (Super.Ct.No. CVRI2203209)
JAMES WYNNE et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Godofredo Cuison
Magno, Judge. Affirmed.
Law Offices of Richard A. Lucal, Richard A. Lucal for Defendants and
Appellants.
Joseph Sarnowski and Mark Wynne, in pro. per, for Plaintiffs and Respondents.
1
Defendants James Wynne1 and Scott Kalkwarf, personal representatives of the
Estate of Frances Marsh, appeal from an order denying their anti-SLAPP motion. (Code
Civ. Proc.,2 § 425.16.) The instant dispute began with an action filed by Mark Wynne
and Kim Wynne, seeking to enforce a settlement agreement that attempted resolve a triad
of lawsuits relating to real property located in Riverside County, that was a part of a
family trust and was encumbered by a mortgage. A settlement agreement was reached
requiring plaintiffs to pay off the mortgage and requiring all defendants to transfer title to
Kim Wynne. The first such motion was granted but allowed additional time for
defendants to perform their obligations under the agreement.
There remained unresolved issues, so plaintiffs filed a second motion to enforce
the settlement agreement, pursuant to section 664.6. This motion resulted in a ruling in
which the court found the material terms of the agreement had been substantially
performed by defendants and suggested plaintiffs file a breach of contract action for the
remaining issues. Plaintiffs did so, and provided notice of the related actions, after which
defendants filed an anti-SLAPP motion, pursuant to section 425.16. The trial court
1 The agreement that forms the basis of this action refers to the Estate of Frances Marsh, James Wynne and Timothy Wynne as “the Marsh parties.” We adopt that nomenclature where appropriate in this opinion for convenience and to avoid confusion where we refer to the originally named defendants in the background section. Only the Estate of Marsh and James Wynne are parties to this appeal. Mark Wynne and Kim Wynne will be referred to as plaintiffs.
2 Except as otherwise indicated, statutory references are to the Code of Civil Procedure.
2
denied the anti-SLAPP motion as frivolous and ordered sanctions against defendants.
Defendants Kalkwarf and James Wynne appeal.
On appeal, defendants argue the trial court erred in finding that (a) the defendants
had not demonstrated that plaintiffs’ claims, which, according to defendants were not
supported by the record and were subject to judicial estoppel, arose from defendants’
petitioning activities, and (b) defendants’ motion was frivolous. We affirm.
BACKGROUND
Because this appeal is from a special motion to strike the complaint, we take the
background facts from the underlying complaint, as well as the pleadings and matters of
which the trial court took judicial notice in connection with defendants’ special motion to
strike, filed pursuant to section 425.16.3 The origins of this case are murky. We discern
that there was an estate proceeding in the State of Washington relating to the Estate of
Frances Marsh, and that the parties to the current action (Timothy Wynne, James Wynne,
Mark Wynne, and Kimberly Wynne, referred to as Trustees of the Tatum Family Trust)
were involved in that proceeding in Washington, and later became parties to several cases
3 The trial court denied defendants’ requests for judicial notice of numerous documents, taking judicial notice only of the notices of rulings in prior actions. Defendants have not assigned error to the refusal to take judicial on appeal, so any error in that respect has been forfeited. In our review, we will not consider those matters. However, we have taken judicial notice of the court records in case No. RIC1701650, which spawned the constellation of lawsuits leading to the appeal in the current case. (Evid. Code, §§ 452, subd. (d), 459.) The litigation in case No. 1701650, alleging fraud and seeking to quiet title to certain real estate, stemmed from the fact that in 2013, the decedent, Frances Marsh, executed a quitclaim deed in favor of herself and Kim Wynne, but in 2014 she issued a grant deed respecting the same property to herself, James Wynne and Timothy Wynne.
3
filed in Riverside County to quiet title to real estate located in Riverside County, which
had apparently not been the subject of an ancillary probate. The various actions included
an action by plaintiffs to quiet title to the real property located in Riverside County (Mark
Wynne et al. v. James Wynne et al., case No. RIC1701650), and an action by the Estate of
Marsh against Mark and Kim Wynne, related to the binding term sheet (Estate of Marsh
et al. v. Mark Wynn, et al., case No. CVRI2200278), as well as an action to enter a sister
state judgment. (Estate of Marsh v. Mark Wynne et al., case No. CVSW2105525.)
Ultimately, a settlement of the various legal proceedings was reached and was
memorialized in a document titled, “Binding Term Sheet,4” (agreement) executed and
accepted as of July 12, 2021, but there were snags in parties’ attempts to complete
performance of the agreement because no ancillary probate had been opened in Riverside
County to facilitate the execution of the deed from the Estate of Marsh. Among other
things, the agreement provided that plaintiffs would pay $175,000 to pay off an existing
mortgage on the property, and in return, all the defendants would execute deeds
transferring title to the property to Kim Wynne as her separate property.
4 Drafts of and communications about a long form settlement agreement are contained at various points in the record, along with email threads revealing the respective intransigence of the parties who could not seem to come to an agreement about escrow instructions or the type of deed to be used to convey title. Additionally, James Wynne and Timothy Wynne refused to sign a general release of all claims, so the binding term sheet was executed and used in lieu of a full settlement and release of all claims. The binding term sheet reflects an intent to enter into a formal settlement agreement to resolve the pending lawsuits, and contains all the material terms for settlement of the various actions. The formal settlement agreement and release of claims did not happen.
4
Plaintiffs, Mark and Kim Wynne, filed a motion to enforce the settlement
agreement because while they had performed their part, they had not received deeds from
the defendants by the date set for performance, which was granted on September 7, 2021.
The trial court found the defendants had anticipatorily breached the agreement by failing
to provide the necessary quitclaim deeds, due to the Estate of Marsh’s failure to file a
petition in Probate Court, which rendered it unable to provide a deed.
On February 24, 2022, plaintiffs filed a second motion to enforce the settlement
agreement due to defendants’ refusal to cooperate in signing escrows instructions, which
resulted in the closure of escrow on more than one occasion to facilitate the exchange of
documents of title for the payment of money.5 On May 10, 2022, the trial court denied
this second motion because while defendant’s had executed quitclaim deeds instead of
grant deeds and although the documents had not been submitted through escrow, the
material provisions of the agreement had been substantially performed. The court noted
that the plaintiffs had paid off the encumbrance and the Marsh parties had recorded
quitclaim deeds transferring title to Kim Wynne. The court ruled that if there were any
other claims against one another, the parties should address them in a separate action for
breach of the agreement.
5 The agreement refers to an escrow to facilitate the exchange, but it also referred to quitclaim deeds to satisfy defendants’ obligation. An escrow was opened, and defendants’ counsel selected Chicago Title Company, to assist in the transaction. However, Chicago Title Company required the defendants to submit grant deeds, which defendants refused to do.
5
On August 1, 2022, plaintiffs filed the instant action for breach of contract and
breach of the covenant of good faith and fair dealing. The complaint alleged that
defendants breached the settlement agreement by refusing to execute documents that
would ensure plaintiffs received clear title, and their imposition of unreasonable demands
respecting the escrow instructions and title insurance to preclude the use of escrow in the
transaction6 violated the covenant of good faith and fair dealing.
Defendants filed a special motion to strike the complaint as a SLAPP7 suit,
pursuant to section 425.16, asserting that the complaint arises from defendant’s
petitioning activities protected by the state and federal Constitutions. James Wynne and
Timothy Wynn joined in the special motion to strike. Plaintiffs opposed the motion as
being frivolous and requested sanctions in the amount of $3500 against defendants. After
reviewing the pleadings and exhibits, and hearing arguments of counsel, the trial court
denied defendants’ motion as frivolous and imposed sanctions in the reduced amount of
$2450. In reaching its decision, the trial court found the complaint for breach of contract
did not arise from defendants petitioning activities, and, having failed to establish the first
prerequisite for a special motion to strike, the court did not need to reach the second
requirement under the statute.
Defendants Kalkwarf and James Wynne appealed.
6 The agreement included a term requiring an escrow to facilitate the exchange of money for title but specified the instructions must be approved and accepted by the Marsh Estate.
7 The acronym SLAPP refers to Strategic Lawsuit Against Public Participation.
6
DISCUSSION
Defendants argue that the trial court erred in denying the special motion to strike
as frivolous and ordering sanctions against defendant Kalkwarf. We address each issue
separately.
A. General Principles Relating to Anti-SLAPP Motions
Section 425.16, the anti-SLAPP statute, authorizes a trial court to strike a cause of
action against a person arising from that person’s exercise of the constitutional rights to
free speech and petition for redress of grievances. The statute was enacted to discourage
lawsuits brought primarily to chill the valid exercise of these constitutional rights.
(§ 425.16, subd. (a); Flatley v. Mauro (2006) 39 Cal.4th 299, 312 (Flatley).) A
proceeding under this section is referred to as a “special motion to strike.” Review of an
order granting or denying a special motion to strike is de novo. (Flatley, supra, at p.
325.)
“In determining whether the anti-SLAPP statute applies in a given situation, we
analyze whether the defendant’s act underlying the plaintiff’s cause of action itself was
an act in furtherance of the right of petition or free speech.” (Dyer v. Childress (2007)
147 Cal.App.4th 1273, 1279.) We employ a two-step process: we must determine (a)
whether the challenged cause of action is one arising from protected activity (Cabral v.
Martins (2009) 177 Cal.App.4th 471, 479), and, if so, whether the plaintiff has
demonstrated a probability of prevailing on the claim. (Drummond v. Desmarais (2009)
176 Cal.App.4th 439, 448-449.) “‘Only a cause of action that satisfies both prongs of the
7
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.’” (Stewart v.
Rolling Stone LLC (2010) 181 Cal.App.4th 664, 675, quoting Navellier v. Sletten (2002)
29 Cal.4th 82, 89 (Navellier).)
The party bringing the motion to strike has the initial burden of making a prima
facie showing that the lawsuit qualifies as a SLAPP suit; if it does not, the motion to
strike may be summarily denied without putting on the plaintiff the burden of
establishing the probability of success on the merits. (Wilcox v. Superior Court (1994) 27
Cal.App.4th 809, 820, disapproved on other grounds in Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 68 (Equilon Enterprises); see also Flatley, supra, 39
Cal.4th at p. 315.)
We review an order granting or denying a special motion to strike under section
425.16 de novo. (Park v. Bd. of Trustees, Cal.State Univ. (2017) 2 Cal.5th 1057, 1067
(Park); Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) 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); Navellier, supra, 29 Cal.4th at
p. 89.) “However, we neither ‘weigh credibility [nor] compare the weight of the
evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and
evaluate defendant’s evidence only to determine if it has defeated that submitted by
plaintiff as a matter of law. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th
260, 269, fn. 3.)
8
1. Protected Activity
A SLAPP action arises from any act of the defendant in furtherance of the
person’s right of petition or free speech. (§ 425.16, subd. (b)(1).) Such an act includes,
among other things, 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 (§ 425.16, subd.
(e)), or 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. (Ibid.)
“A claim arises from protected activity when that activity underlies or forms the
basis for the claim.” (Park, supra, 2 Cal.5th at p. 1062.) “Critically, ‘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.’” (Id., at p. 1063, citing City of Cotati v. Cashman (2002)
29 Cal.4th 69, 78; accord, Equilon Enterprises, supra, 29 Cal.4th at p. 66.)
To determine whether the conduct arises from protected activity, a court ruling on
an anti-SLAPP motion should consider the elements of the challenged claim and what
actions by the defendant supply those elements and consequently form the basis for
liability. (Park, supra, 2 Cal.5th at p. 1063.) Thus, “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.” (Id., at p.
1060.)
“‘[T]he mere fact that an action was filed after protected activity took place does
9
not mean that the action arose from that activity for purposes of the anti-SLAPP statute.’
[Citations.] Instead, the focus is on determining what ‘the defendant’s activity [is] that
gives rise to his or her asserted liability - and whether that activity constitutes protected
speech or petitioning.’ [Citation.]” (Park, supra, 2 Cal.5th at p. 1063.)
“It is important to note that the anti-SLAPP statute does not immunize or insulate
defendants from any liability for claims arising from protected activity. It only provides
a procedure for weeding out, at an early stage, such claims that are meritless.” (San
Diegans for Open Government v. San Diego State Univ. Research Foundation (2017) 13
29 Cal.4th at p. 89.) Thus, “in ruling on an anti-SLAPP motion, courts should consider
the elements of the challenged claim and what actions by the defendant supply those
elements, forming the basis for liability.” (Park, supra, 2 Cal.5th at p. 1063.)
Additionally, a trial court must distinguish between speech or petitioning activity
that is mere evidence related to liability and liability that is based on speech or petitioning
activity. ((Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181
Cal.App.4th 1207, 1214–1215.) “[T]he statute does not automatically apply simply
because the complaint refers to some protected speech activities.” (Martinez v.
Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.)
Likewise, an action for breaching the terms of a settlement agreement does not
implicate protected activity: “Under the explanatory provisions in subdivision (e) of
section 425.16, defendant’s entering into the settlement agreement during the pendency
10
of the federal case was indeed a protected activity, but defendant’s subsequent alleged
breach of the settlement agreement after the federal case was concluded is not protected
activity because it cannot be said that the alleged breaching activity was undertaken by
defendant in furtherance of defendant’s right of petition or free speech, as those rights are
defined in section 425.16. Thus, the instant suit is based on alleged conduct of defendant
that is not protected activity.” (Applied Business Software, Inc. v. Pacific Mortgage
Exchange, Inc. (2008) 164 Cal.App.4th 1108, 1118 (Applied Business Software).)
Although we agree that the filing of a complaint in breach of a general release is a
writing made in connection with an issue under review by a judicial body and therefore
satisfies the first prong of the analysis (see Navellier, supra, 29 Cal.4th at pp. 88–89; see
also Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1408-1409), and that the process of
negotiating a settlement may qualify as a protected activity (see Seltzer v. Barnes (2010)
182 Cal.App.4th 953, 963-964), the filing of a complaint for breach of that settlement
agreement does not arise from protected activity (unless it could be said that the act of
breaching the agreement, or actively preventing completed performance of the settlement
agreement, can be considered a protected activity). (Applied Business Software, supra,
164 Cal.App.4th at p. 1118.)
Here, a settlement arose out of multifarious and protracted proceedings which
attempted to resolve the disputes among the various parties by providing for the exchange
of money in return for “clear title” to real property. The record amply demonstrates that
defendants were actively engaged in a “scorched earth” course of conduct to prevent the
11
need to comply with the term requiring the Estate to provide “clear title,” by refusing to
accept as approved any escrow instructions designed to insure completed performance of
the settlement agreement. Defendants’ machinations had the desired effect of postponing
its performance and avoiding an escrow, which would have required execution of grant
deeds to satisfy applicable title insurance requirements. Defendants therefore exploited
the provision that escrow instructions be approved by the Estate to repeatedly close
escrows opened to consummate the agreement to transfer clear title to Kim Wynne in
return for payoff of the Marsh encumbrance.
After the date set for performance and after the plaintiffs made their first motion to
enforce the settlement agreement, defendants executed their quitclaim deeds, which were
not submitted to escrow as required by the agreement. These quitclaim deeds in favor of
plaintiff Kim Wynne were recorded, which prompted the trial court to deny the second
motion to enforce the settlement because the material terms had been performed, and to
recommend that a separate action for breach of contract be filed to address other issues.
The current lawsuit arose from the allegations that defendants’ course of conduct violated
the agreement’s requirement that defendants convey “clear title,” not from any
petitioning conduct by the defendants.
Defendants own reply to plaintiff’s opposition to the anti-SLAPP motion
acknowledged that the action arose from an effort by plaintiffs to enforce the settlement
agreement, although they rely on inapposite authority in arguing that such actions can
arise from protected activities. We have no reason to address the hypothetical situation in
12
which such an action might be deemed to arise from a protected activity where
defendants failed to establish that it did so in this action. Defendant’s acknowledgment
that the gravamen of the complaint was an action for relief from a breach of the
settlement agreement and the history of the case demonstrates that defendant’s conduct
was not protected activity.
Having failed to meet the first prong of the two-pronged inquiry into the propriety
of anti-SLAPP relief, defendants failed to satisfy the requirements of section 425.16; the
trial court was correct in denying the motion.
B. Propriety of Sanctions for a Frivolous Motion.
Section 425.16, subdivision (c), provides “[i]f the court finds that a special motion
to strike is frivolous or is solely intended to cause unnecessary delay, the court shall
award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion,
pursuant to [Code of Civil Procedure] [s]ection 128.5.” Section 128.5 in turn, provides
that a trial court may award “reasonable expenses, including attorney’s fees, incurred by
another party as a result of actions or tactics, made in bad faith, that are frivolous or
solely intended to cause unnecessary delay.” (§ 128.5, subd. (a).) The statute defines
frivolous as “totally and completely without merit or for the sole purpose of harassing an
opposing party.” (Id., subd. (b)(2).)
“‘Frivolous in this context means that any reasonable attorney would agree the
motion was totally devoid of merit. [Citation.] An order awarding attorneys’ fees
pursuant to section 128.5, as incorporated in section 425.16, subdivision (c), is reviewed
13
under the abuse of discretion test. [Citation.] A ruling amounts to an abuse of discretion
when it exceeds the bounds of reason, and the burden is on the party complaining to
establish that discretion was abused.’ [Citations.]” (Alfaro v. Waterhouse Management
Corp. (2022) 82 Cal.App.5th 26, 36-37.)
Having read the entire record, we find no abuse of discretion. To the contrary, all
of the defendants’ conduct was intended for the purpose of delaying execution of the
contract and frustrating a term of the agreement requiring the opening of an escrow. The
motion was frivolous, as well as done in bad faith, yet the defendants benefitted from the
trial court’s reduction in the amount of sanctions by imposing the modest amount of
$2450. There was no error in imposing sanctions for the frivolous motion.
DISPOSITION
The judgment is affirmed. Plaintiffs Mark and Kim Wynne are entitled to costs on
appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
McKINSTER J.
MILLER J.
14
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendants' anti-SLAPP motion was properly denied because the underlying breach of contract action did not arise from protected petitioning activity, and the motion was frivolous, justifying the imposition of sanctions.
Issues
Whether the plaintiffs' breach of contract action arose from protected petitioning activity under Code of Civil Procedure section 425.16.
Whether the trial court abused its discretion in finding the anti-SLAPP motion frivolous and awarding sanctions.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“the current lawsuit arose from the allegations that defendants’ course of conduct violated the agreement’s requirement that defendants convey “clear title,” not from any petitioning conduct by the defendants.”
“Having failed to meet the first prong of the two-pronged inquiry into the propriety of anti-SLAPP relief, defendants failed to satisfy the requirements of section 425.16; the trial court was correct in denying the motion.”
“The motion was frivolous, as well as done in bad faith”