California Court of Appeal Jun 28, 2013 No. E054908Unpublished
Before: Hollenhorst
Filed 6/28/13 Trapp v. Naiman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
BENNIE G. TRAPP, SR. et al.,
Plaintiffs and Respondents, E054908
v. (Super.Ct.No. RIC1107293)
RANDALL D. NAIMAN et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Paulette Durand-
Pro Inc. (2007) 152 Cal.App.4th 1043, 1055, [“Defendants‟ act of filing the complaint
[for abuse of process] in the underlying action squarely falls within section 425.16,
subdivision (e)(1).”].) “Filing a lawsuit is an act in furtherance of the constitutional right
of petition, regardless of whether it has merit. [Citations.]” (JSJ Partnership v.
Mehrban, supra, 205 Cal.App.4th at pp. 1521-1522.)
While Plaintiffs admit that the first amended complaint was based in part on the
UD actions, the remainder was based on the nonjudicial foreclosure. Thus, they argue
that the trial court correctly applied the holding in Garretson and concluded that the first
causes of action regarding the nonjudicial foreclosure were not subject to the anti-SLAPP
statute. In Garretson, we held that the act of noticing a nonjudicial foreclosure sale does
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not qualify as a protected activity under the anti-SLAPP statute. (Garretson, supra, 156
Cal.App.4th at pp. 1515, 1524-1525.) But a fair reading of Plaintiffs‟ claims shows that
they are centered on Plaintiffs‟ primary assertion that defendants (generic to include all
defendants being sued) either fraudulently or negligently foreclosed on the Property.
However, Plaintiffs acknowledge that Defendants “did not directly participate in” the
nonjudicial foreclosure proceedings. Thus, Plaintiffs seek to bootstrap those proceedings
to Defendants‟ representation of their clients in the UD actions in order to avoid
application of the anti-SLAPP statute. Relying on Garretson, the trial court agreed with
such application. We do not.
The applicability of the anti-SLAPP statute is determined by the “principal thrust
or gravamen” of the claim. (Martinez v. Metabolife Internat., Inc. (2003) 113
Cal.App.4th 181, 188, italics omitted; see also Dyer v. Childress (2007) 147 Cal.App.4th
1273, 1279.) In each of the four causes of action, Plaintiffs challenge the nonjudicial
foreclosure. In the fifth they challenge the UD actions. The only way to keep
Defendants in this action is through the use of their representation of LaSalle/BofA in the
UD actions. However, such representation is a protected activity and is a proper subject
of a motion made pursuant to the anti-SLAPP statute. Where causes of action allege both
protected and unprotected activity, all the causes of action must be stricken. (Fox
Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308; Rusheen, supra,
37 Cal.4th at pp. 1064-1065.) Thus, we hold that all of Plaintiffs‟ causes of action
against Defendants arise from their protected activity and are subject to the anti-SLAPP
motion.
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Regarding Plaintiffs‟ likelihood of prevailing on the merits of their claims, they
are unable to carry their burden of a probability of success with regard to their claims
against Defendants in light of the litigation privilege. (Flatley, supra, 39 Cal.4th at p.
323; Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 972.) “The litigation privilege
precludes liability arising from a publication or broadcast made in a judicial proceeding
or other official proceeding. „“The usual formulation is that the privilege applies to any
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the litigation; and (4) that
[has] some connection or logical relation to the action.” [Citation.] The privilege “is not
limited to statements made during a trial or other proceedings, but may extend to steps
taken prior thereto, or afterwards.” [Citation.]‟ [Citation.]” (Fremont Reorganizing
Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1172, fn. omitted.)
“The purposes of [Civil Code] section 47, subdivision (b), are to afford litigants
and witnesses free access to the courts without fear of being harassed subsequently by
derivative tort actions, to encourage open channels of communication and zealous
advocacy, to promote complete and truthful testimony, to give finality to judgments, and
to avoid unending litigation. [Citation.] To effectuate these purposes, the litigation
privilege is absolute and applies regardless of malice. [Citation.] Moreover, „[i]n
furtherance of the public policy purposes it is designed to serve, the privilege prescribed
by [Civil Code] section 47[, subdivision (b)] has been given broad application.‟
[Citation.]” (Rusheen, supra, 37 Cal.4th at p. 1063.) “A prelitigation communication is
privileged only if it „relates to litigation that is contemplated in good faith and under
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serious consideration.‟ [Citation.] „Good faith‟ in this context refers to a good faith
intention to file a lawsuit rather than a good faith belief in the truth of the
communication. [Citation.] The requirement of good faith contemplation and serious
consideration provides some assurance that the communication has some „“„connection
or logical relation‟”‟ to a contemplated action and is made “„“to achieve the objects”‟” of
the litigation. [Citation.]” (Fremont Reorganizing Corp. v. Faigin, supra, 198
Cal.App.4th at p. 1173.)
Based on the above, Defendants‟ motion to dismiss pursuant to the anti-SLAPP
statute should have been granted because their only connection to Plaintiffs‟ claims stems
from their representation of LaSalle/BofA in the UD actions. Thus, we reverse the trial
court‟s order denying Defendants‟ anti-SLAPP motion and direct the trial court to enter
an order granting it and dismissing the complaint as to Defendants.
We note that upon remand to the trial court for entry of a new order granting
Defendants‟ anti-SLAPP motion and dismissal of the complaint as to Defendants, the
trial court must conduct further proceedings pursuant to section 425.16, subdivision (c).
“Under subdivision (c) of section 425.16, „a prevailing defendant on a special motion to
strike shall be entitled to recover his or her attorney‟s fees and costs.‟ This section
authorizes the court to make an award of reasonable attorney fees to a prevailing
defendant, which will adequately compensate the defendant for the expense of
responding to a baseless lawsuit. [Citation.]” (Dove Audio, Inc. v. Rosenfeld, Meyer &
Susman (1996) 47 Cal.App.4th 777, 785.) Attorney fees are mandatory to the prevailing
defendant and the amount to a defendant on a successful anti-SLAPP motion is within the
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discretion of the trial court. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131;
Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685-686.) Any fee award
must also include those incurred on appeal. (Dowling v. Zimmerman (2001) 85
Cal.App.4th 1400, 1426.)
IV. TIMELINESS OF THE ANTI-SLAPP MOTION
According to Plaintiffs, Defendants‟ anti-SLAPP motion was untimely. We
disagree. Section 425.16, subdivision (f), in relevant part, provides that the “special
motion [to strike] may be filed within 60 days of the service of the complaint or, in the
court‟s discretion, at any later time upon terms it deems proper.” According to the
register of actions, Plaintiffs‟ first amended complaint was personally served on May 6,
2011. However, Defendants claim to have been served on May 10, 2011. Regardless of
the actual service date, the statute provides that the motion “may” be filed within 60 days
of service of the complaint, or at a later date based on the court‟s discretion. (§ 425.156,
subd. (f).) Thus, assuming Defendants were served on May 10, they had until July 11 to
file their anti-SLAPP motion (the 60th day falls on July 9, which is a Saturday, and thus,
the motion was timely if filed on Monday, July 11). However, assuming Defendants
were served on May 6, it was within the trial court‟s discretion to accept the motion,
which it did. Either way, we find no merit to this argument.
V. DISPOSITION
The order denying Defendants‟ anti-SLAPP motion is reversed. The trial court is
directed to issue an order granting Defendants‟ anti-SLAPP motion in its entirety and
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dismissing the complaint as to Defendants. The trial court shall award attorney fees and
costs incurred by Defendants both in the trial court and on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
RICHLI J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that all of the plaintiffs' causes of action against the defendants arose from protected litigation activity and were barred by the litigation privilege, requiring the trial court to grant the defendants' anti-SLAPP motion in its entirety.
Issues
Whether the defendants' actions in representing clients in unlawful detainer proceedings constitute protected activity under the anti-SLAPP statute.
Whether the plaintiffs demonstrated a probability of prevailing on the merits of their claims against the defendants.
Whether the defendants' anti-SLAPP motion was timely filed.
Disposition. reversed
Quotations verified verbatim against the opinion
“Where causes of action allege both protected and unprotected activity, all the causes of action must be stricken.”
“Thus, we hold that all of Plaintiffs‟ causes of action against Defendants arise from their protected activity and are subject to the anti-SLAPP motion.”
“The litigation privilege is absolute and applies regardless of malice.”