Trapp v. Naiman

• Decision Date: 02 October 2013
• Docket Number: E054908
• Citation: 159 Cal.Rptr.3d 462,218 Cal.App.4th 113
• Court: California Court of Appeals Court of Appeals
• Parties: Bennie G. TRAPP, Sr. et al., Plaintiffs and Respondents, v. Randall D. NAIMAN et al., Defendants and Appellants.

218 Cal.App.4th 113

159 Cal.Rptr.3d 462

Bennie G. TRAPP, Sr. et al., Plaintiffs and Respondents,

v.Randall D. NAIMAN et al., Defendants and Appellants.

E054908

Court of Appeal,

Fourth District, Division 2, California.

Filed June 28, 2013

Review Denied October 2, 2013

See 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1019 et seq.

APPEAL from the Superior Court of Riverside County. Paulette Durand–Barkley, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed. (Super.Ct.No. RIC1107293)

Murphy, Pearson, Bradley & Feeney, John P. Girarde, Jason E. Fellner and Nicholas C. Larson, San Francisco, for Defendants and Appellants.

Bennie G. Trapp, Sr., and B. Garrett Trapp, Jr., in pro. per. for Plaintiffs and Respondents.

OPINION

HOLLENHORST, Acting P.J.

Plaintiffs and respondents Bennie G. Trapp, Sr., and B. Garrett Trapp, Jr., (Plaintiffs) initiated this action based on the foreclosure and subsequent unlawful detainer action against them. The defendants in this action include the financial institutions and their lawyers, Randall D. Naiman and Naiman Law Group, P.C. (erroneously sued as “Law Office of Randall D. Naiman”). Only Naiman and Naiman Law Group, P.C. appeal (Defendants). Defendants brought a special motion to strike (anti-SLAPP motion) under Code of Civil Procedure section 425.16¹ (the anti-SLAPP statute). The trial court granted the motion as to Plaintiffs' claim for negligence and abuse of process, but denied it as to their claims for quiet title, wrongful foreclosure, breach of duty of good faith and fair dealing, and unfair business practices under Business and Professions Code sections 17200 et seq. The court cited Garretson v. Post (2007) 156 Cal.App.4th 1508 [Fourth Dist.Div.Two] ( Garretson ) in support of its decision. Defendants appeal, contending the trial court erred in applying the Garretson holding to the facts in this case. We agree and reverse the order to the extent it denies the anti-SLAPP motion.

I. PROCEDURAL BACKGROUND AND FACTS

This action arises from the nonjudicial foreclosure proceedings brought by LaSalle, later acquired by Bank of America, (LaSalle/BofA) against Plaintiffs relating to the real property located at 12860 Perris Boulevard, No. D7, Moreno Valley, California 92553 (Property) along with subsequent unlawful detainer (UD) actions pertaining to the Property filed by Defendants on behalf of their clients, LaSalle/BofA. Following the nonjudicial foreclosure of the Property, Defendants, as attorneys for LaSalle/BofA, served three separate 3/60–day notices to vacate on Trapp, Sr., and unknown occupants, followed by three separate UD actions. The first UD action against Plaintiffs was filed on August 25, 2008, and then dismissed on November 5, 2008. The second UD action was filed on January 5, 2011, and then dismissed on or about March 24, 2011. The third and final UD action was filed on April 7, 2011. One week later, Trapp, Sr., filed an answer and cross-complaint, which were rejected by the court because an answer is the only allowed response to a UD action. Thus, Plaintiffs filed the instant action on April 27, 2011, and the third UD action was dismissed without prejudice on or about June 16.

On May 4, 2011, Plaintiffs filed their first amended complaint against Defendants and others, alleging causes of action for (1) quiet title, (2) wrongful foreclosure, (3) breach of the duty of good faith and fair dealing, (4) unfair business practices under Business and Professions Code section 17200 et seq., and (5) negligence and abuse of process. Plaintiffs' allegations as to Defendants are based on defendants' actions on behalf of LaSalle/BofA in the underlying UD actions that occurred after the nonjudicial foreclosure of the Property. Plaintiffs allege that Trapp, Sr., owned the Property subject to this lawsuit, and that Trapp, Jr., resided on the Property. They claim Defendants “abused the court processes by filing numerous [UD actions] when [Defendants] knew or should have know[n] that the foreclosure was invalid,” and that the UD actions “were filed in an effort to harass Plaintiffs with unjustified claims which [Defendants] knew or should have known were not proper.”

On June 9, 2011, Defendants filed their answer, and two days later they filed an anti-SLAPP motion. Defendants claimed the UD actions they filed on behalf of LaSalle/BofA arose from a protected activity. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056, 39 Cal.Rptr.3d 516, 128 P.3d 713 (Rusheen ); Feldman v. 1100 Park Lane Assoc. (2008) 160 Cal.App.4th 1467, 1478–1484, 74 Cal.Rptr.3d 1.) Defendants further claimed that Plaintiffs could not show a probability of prevailing on their claims because the UD actions were privileged under the litigation privilege doctrine.

In opposition, Plaintiffs argued that (1) the anti-SLAPP motion was untimely because it was filed 66 days after the complaint was served, and (2) Defendants cannot show that their actions were taken in furtherance of their right to free speech in connection with a public issue. The trial court granted the anti-SLAPP motion as to one cause of action only, namely, the negligence and abuse of process claim. As to the remaining causes of action, the court denied the motion based on the holding in Garretson. Defendants appeal.

II. APPLICABLE ANTI–SLAPP LAW

Under section 425.16, “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech ... shall be subject to a special motion to strike ....” (§ 425.16, subd. (b)(1).) “A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted ... section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]” (Rusheen, supra, 37 Cal.4th at pp. 1055–1056, 39 Cal.Rptr.3d 516, 128 P.3d 713.) The purpose of the statute is to prevent the chilling of the valid exercise of these rights through “abuse of the judicial process” and, to this end, is to “be construed broadly.” (§ 425.16, subd. (a); Flatley v. Mauro (2006) 39 Cal.4th 299, 312–313, 46 Cal.Rptr.3d 606, 139 P.3d 2 (Flatley ).)

The anti-SLAPP statute establishes a two-step procedure whereby the trial court evaluates the merits of a plaintiff's cause of action, using a summary-judgment-like procedure, at an early stage of the litigation. (Flatley, supra, 39 Cal.4th at p. 312, 46 Cal.Rptr.3d 606, 139 P.3d 2.) First, the defendant is required to show that the cause of action arises from protected activity, i.e., activity by the defendant in furtherance of his constitutional right of petition or free speech. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685 (Equilon ).)

“ ‘A cause of action “arising from” defendant's litigation activity may appropriately be the subject of a section 425.16 motion to strike.’ [Citations.] ‘Any act’ includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.] This includes qualifying acts committed by attorneys in representing clients in litigation. [Citations.]” (Rusheen, supra, 37 Cal.4th at p. 1056, 39 Cal.Rptr.3d 516, 128 P.3d 713.) Additionally, the absolute litigation privilege of Civil Code section 47, subdivision (b), for “judicial” or “official” communications helps define the meaning of protected activity under section 425.16. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115–1116, 81 Cal.Rptr.2d 471, 969 P.2d 564.)

If the trial court determines that the defendant has met his initial burden, the burden shifts to the plaintiff to demonstrate a reasonable probability of prevailing on the merits of his cause of action. (Equilon, supra, 29 Cal.4th at p. 67, 124 Cal.Rptr.2d 507, 52 P.3d 685; § 425.16, subd. (b)(1).) “Put another way, the plaintiff ‘must 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.’ [Citations.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, 123 Cal.Rptr.2d 19, 50 P.3d 733, abrogated in part by statute as stated in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 547, 59 Cal.Rptr.3d 109.) The role of the trial court is not to weigh the credibility or comparative strength of the parties' evidence; rather, it determines whether the defendant's evidence defeats the plaintiff's prima facie showing as a matter of law. (Wilson v. Parker, Covert & Chidester, supra, at p. 821, 123 Cal.Rptr.2d 19, 50 P.3d 733.)

We independently review orders granting or denying a motion to strike under section 425.16. (Flatley, supra, 39 Cal.4th at pp. 325–326, 46 Cal.Rptr.3d 606, 139 P.3d 2.) Only causes of action that satisfy both prongs of the anti-SLAPP statute, i.e., that arise from protected speech or petitioning activity and that lack even minimal merit, are subject to being stricken under the anti-SLAPP statute. ( Navellier v. Sletten (2002) 29 Cal.4th 82, 89, 124 Cal.Rptr.2d 530, 52 P.3d 703.)

III. ANALYSIS

According to Defendants, Plaintiffs' claims have minimal factual support against them, based only upon their actions on behalf of their clients in the UD actions which occurred after the nonjudicial foreclosure of the Property. Thus, the main issue is whether the claims asserted by Plaintiffs arise from protected activity. Plaintiffs disagree, contending their complaint was in part about the nonjudicial foreclosure proceedings and in part about the UD actions. They claim Defendant Randall D. Naiman, “an experienced foreclosure attorney knew his lawsuits had no merit yet he kept filing one frivolous [UD] after...