Hines v. Anderson

Filed 9/29/06 Hines v. Anderson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Charles Margines, Judge. Affirmed.

Meir J. Westreich for Plaintiffs and Appellants.

Phillip D. Eaton for Defendant and Respondent.

Yvonne M. Hines and William Carroll filed a malicious prosecution complaint against an attorney, John Anderson, who had represented the plaintiffs in an earlier action filed against them. The trial court granted Anderson’s special motion to strike the complaint as a strategic lawsuit against public participation, i.e., “SLAPP” suit (Code Civ. Proc., § 425.16),[1] in part because the underlying action was still pending and there was no favorable termination of the suit. On appeal, Hines and Carroll contend: (1) their complaint was not subject to an anti-SLAPP motion; (2) they demonstrated a probability of prevailing; and (3) the trial court abused its discretion by denying their motions to vacate the judgment and reconsider the ruling after they settled with the plaintiffs and the underlying action was dismissed. We find no error and affirm the judgment.

FACTS

1. Background: A real estate deal goes awry.

Hines and Carroll (hereafter sometimes collectively referred to as the Sellers) are a couple who owned and lived in a house located in Corona that they listed for sale for $900,000. Judith A. Pacholik and Robert L. Baskin are a couple, and Virginia Taylor is Pacholik’s mother. Pacholik, Baskin, and Taylor (sometimes collectively referred to as the Buyers) agreed to pool their funds to purchase a home where all three could live. The home would be purchased using money Baskin had available from a corporation, Richland Corporation, of which he was the sole director, and proceeds from the prospective sale of homes owned by Pacholik and Taylor.

On January 13, 2003, Carroll, Baskin, and Pacholik reached an oral agreement for sale of the Sellers’ house to the Buyers for $865,000. A one-page document initialed by Carroll (and not by Hines) and signed by Baskin and Pacholik (and not by Taylor) contained the major financial terms including that the Buyers would make a “non-refundable” deposit of $100,000, by the next day, January 14. Carroll later explained the deposit was intended as “a litmus test” to assess whether the Buyers were capable of consummating the sale, and was a prerequisite to his agreement to not continue to market the property to other interested persons.

In accordance with Carroll’s directions, on January 14 Baskin wired $100,000 to Carroll’s longtime attorney John G. Cruz. Baskin obtained the funds as a loan from Richland Corporation. It was Carroll’s intention that Cruz would hold the deposit money solely for the Sellers’ benefit. Although Cruz then prepared a written real estate sales contract, it was never executed.

On January 21, Baskin and Pacholik advised Cruz they did not intend to go through with the transaction because Carroll had made several misrepresentations about the property. They demanded return of the $100,000 deposit.

Baskin and Pacholik retained Anderson to represent them. Anderson spent two weeks unsuccessfully attempting to negotiate return of the full $100,000 deposit. During that time, the Sellers entered into an agreement with their back up buyers for the property. The Sellers, through their current attorney, Meir J. Westreich, offered to settle the dispute by returning $90,000 of the deposit (retaining $10,000 to cover their legal fees) once the new buyers had signed the purchase and sale agreement.

Apparently during his discussions with attorney Westreich, Anderson threatened to file a legal action on the Buyers’ behalf and mentioned filing a “‘lis pendens’” if the full deposit were not returned. Westreich protested that because the Buyers did not claim to have an interest in the real property, and filing a lis pendens would be illegal. He accused Anderson of threatening to file a lis pendens as a tactical maneuver to extort the remaining $10,000 from the Sellers lest the agreement with the new buyers be “torpedo[ed].” Anderson filed the underlying lawsuit--he did not record a lis pendens.

2. The underlying action is filed.

Anderson filed the original complaint in Baskin et al. v. Hines et al. (Super. Ct. Orange County, 2003, No. 03CC02715) on February 7, 2003, on behalf of Baskin, Richland Corporation, Pacholik, and Taylor. The complaint named as defendants Hines, Carroll, and their prior attorney Cruz and his law firm, Daehnke & Cruz (hereafter collectively Cruz). The first cause of action for injunctive relief, against all defendants, alleged Richland Corporation was entitled to return of the full $100,000 deposit, which was its property. The second cause of action for declaratory relief against Hines and Carroll sought a declaration there was no contract between the Sellers and the Buyers, and the deposit monies were owned by Richland Corporation. The remaining tort causes of action for fraud and intentional and negligent infliction of emotional distress alleged the Buyers had been damaged by misrepresentations of the Sellers in the way of “lost interest on the funds, lost time, and expended funds and accrued attorney fees[,]” and had suffered emotional distress as a result of the Sellers’ failure to return the deposit funds.

Anderson filed a supplemental complaint in July 2003. The new factual allegations included that after the Buyers’ motion for a preliminary injunction was denied, Cruz disbursed the entire $100,000 deposit to the Sellers. The supplemental complaint added causes of action against Cruz for “breach of trust“ and “breach of duties of an escrow agent,” and against all defendants for conversion and unjust enrichment.

In December 2003, the Sellers and Cruz filed a cross-complaint against Baskin, Richland Corporation, Pacholik, and Taylor. As to the Sellers, the cross-complaint alleged the Buyers (Baskin, Pacholik, and Taylor) had entered into a binding sales contract for the Corona property, paid the $100,000 nonrefundable deposit, and breached the land sales contract when they refused to consummate the transaction. The cross-complaint also contained the Sellers’ causes of action for “quasi-contract [and] equitable estoppel,” breach of the implied covenant of good faith and fair dealing, and fraud. As to the Sellers and Cruz, the cross-complaint contained a cause of action for abuse of process alleging the complaint was filed without probable cause to improperly coerce the Sellers into returning the deposit, and for declaratory relief and interpleader. The $100,000 was deposited by the Sellers and Cruz with the court.

On August 10, 2004, Baskin, Richland Corporation, Pacholik, and Taylor entered into a settlement agreement with attorney Cruz and dismissed the supplemental complaint and cross-complaint as it pertained to Cruz. On August 13, 2004, Hines and Carroll filed a motion for summary judgment or summary adjudication on the complaint in the underlying action against Pacholik and Taylor only. They asserted that because the $100,000 deposit had been paid by Baskin, Pacholik and Taylor had no interest in the deposit money and no standing. Anderson filed opposition on Pacholik and Taylor’s behalf, but the only fact he disputed was whether Pacholik and Taylor had an interest in the $100,000 deposit. The opposition stated their interest “in the $100,000 is limited to the diminution of resources [they] had available to acquire a residence together.” On October 27, 2004, the court granted the Sellers’ motion for summary judgment against Pacholik and Taylor on the complaint only. An order was entered on November 16. No judgment was entered on the order.[2]

3. The current action is filed.

The same day the order granting the summary judgment motion was entered, the Sellers filed the current complaint against Pacholik, Taylor, and Anderson for malicious prosecution, abuse of process, and extortion. The complaint alleged facts about the failed real estate deal and the $100,000 deposit, that during negotiations for return of the deposit Anderson “deliberately, dishonestly, falsely and maliciously stated, implied[,] and lead [the Sellers] to believe” Pacholik and Taylor had some interest in the deposit, and that Anderson only included Pacholik and Taylor as plaintiffs in the underlying action to have “ostensibly sympathetic plaintiffs--both women, and Taylor elderly and retired” to “coerce [the Sellers] into a settlement . . . .” The abuse of process cause of action alleged Pacholik, Taylor, and Anderson had “employed the use of various forms of process, and/or threat of such use, for the ulterior purpose of compelling [the Sellers] to submit to such unlawful coercion and return the full deposit . . . .” The “extortion” cause of action alleged Pacholik, Taylor, and Anderson pursued a “frivolous” claim “to extort settlement money from [the Sellers].”

4. Anti-SLAPP motions are filed.

Anderson filed a special motion to strike the current complaint under section 425.16 (anti-SLAPP motion) as did Pacholik and Taylor, who were now represented by a different attorney. The motions were substantially the same and ruled on at the same time.

Anderson’s motion was supported by his declaration stating he believed there was probable cause to include Taylor and Pacholik as plaintiffs in the underlying action because they were members of the “informal partnership that planned to jointly buy, own, and occupy the house.” The Buyers had agreed to each contribute funds towards the purchase of a house; it just happened that Baskin was the one with immediate access to money through his corporation. Anderson surmised the deposit was put up by Baskin for the benefit of all three “and it was logical that all three were real parties in interest as to the $100,000, i.e.[,] that if the funds were lost, equity would require a pro rata contribution by the other partners . . . .” Anderson also believed Pacholik and Taylor had standing to assert fraud and intentional infliction of emotional distress causes of action because they had agreed to go forward with the purchase and agreed to let Baskin make the deposit on their behalf as a result of false information about the property, and both had suffered emotionally “from the loss of the house they wanted to spend the rest of their lives in,” and by the loss of the use of the $100,000 in looking for another suitable house. Anderson declared that when the underlying action was filed, he had never met Hines or Carroll and had no malice or ill will towards them.

Anderson went on to explain that trial in the underlying action (on the complaint as to Baskin and Richland Corporation and on the Sellers’ cross-complaint as to all three of the Buyers) had been set for trial on November 29, 2004. Immediately after the October 2004 hearing at which the court granted the summary judgment motion as to Pacholik and Taylor, the Sellers’ attorney, Westreich, sent Anderson a letter demanding immediate payment of $70,000 or he would file a malicious prosecution action against Pacholik, Taylor, and Anderson. Westreich filed the current action before the trial in the underlying action creating an immediate conflict between Anderson and his clients requiring him to substitute out as their attorney in the underlying action. Taylor and Pacholik both submitted declarations attesting to their lack of malice or ill will towards the Sellers--they just wanted the $100,000 deposit back.

The Sellers’ opposition to the anti-SLAPP motions was supported by declarations from attorney Westreich and Carroll. Westreich’s two-page declaration contained no facts and simply attached copies of correspondence between himself and Anderson that preceded the filing of the complaint in the underlying action. Carroll’s declaration largely recounted his recollection of the underlying real estate transaction and explained why he wanted the $100,000 deposit to be nonrefundable.

5. The court grants the anti-SLAPP motions, a statement of decision is signed, and an order striking the current complaint is entered.

On March 9, 2005, the court granted both anti-SLAPP motions.[3] It ordered the prevailing parties to prepare a statement of decision and proposed order. On March 22, Pacholik and Taylor served and filed a proposed statement of decision and order.

On April 6, the court signed Pacholik and Taylor’s proposed statement of decision and the order granting both anti-SLAPP motions, striking the current complaint, and awarding Pacholik, Taylor, and Anderson their costs and attorney fees. In the statement of decision, the court concluded the current complaint was subject to an anti-SLAPP motion because it arose out of the defendants’ petitioning activity. The burden was on the Sellers to demonstrate a probability of prevailing on each cause of action. It concluded the Sellers could not prevail on the malicious prosecution cause of action because there had not “been a favorable termination in their favor”--the underlying action was still pending. On April 7, the Sellers filed objections to the proposed statement of decision.

6. Anderson gets “thrown under the bus.”

On April 8, the Sellers, Taylor, Pacholik, Baskin, and Richland Corporation entered into a global settlement, which included a stipulation that the April 6 order granting the anti-SLAPP motions be vacated. Pursuant to the settlement agreement, the entire $100,000 deposit was returned to Baskin. The parties specifically agreed the settlement did not constitute an admission by any party of any wrongdoing. The entire underlying action (complaint and cross-complaint) was dismissed with prejudice. The Sellers dismissed the current complaint with prejudice as to Pacholik and Taylor only, with the express understanding they would now proceed against Anderson alone.

7. The Sellers’ motions to vacate and reconsider the order are denied.

On April 19, the Sellers filed a motion for reconsideration of the order granting Anderson’s anti-SLAPP motion on the ground there was a material change of facts--namely, there was now a final resolution of the underlying action by virtue of the global settlement and dismissals. On May 25, the Sellers filed a motion to vacate the statement of decision and the order granting Anderson’s anti-SLAPP motion under section 473 on the ground both were “void” because they were filed before the time had expired for the Sellers to file objections to the proposed statement of decision. The trial court denied both motions. The court stated it had considered the Sellers’ objections to the original statement of decision and overruled them.

DISCUSSION

1. Anti-SLAPP Law

Section 425.16, subdivision (b)(1), provides, “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 under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

In ruling on an anti-SLAPP motion, the trial court engages in a two-step analysis. First, the defendant must show the activity underlying the cause of action is constitutionally protected. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If so, then the plaintiff must show a likelihood of prevailing on the cause of action. (Ibid.) In meeting that burden, “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.)

“Only a cause of action that satisfies both prongs of the 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.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) On appeal, we examine both questions de novo, “conducting an independent review of the entire record. [Citations.]” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212, see also Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569.)

2. “Arising Out of” Prong

The Sellers’ complaint contained three causes of action: malicious prosecution, abuse of process, and extortion. The causes of action were all based on the same conduct--the events leading up to and the filing of the underlying complaint. Specifically, the Sellers alleged Anderson filed the underlying complaint on behalf of Pacholik and Taylor without probable cause and with malice, in so doing he was abusing legal process so as to coerce the Sellers into returning the full deposit, and he was attempting to “extort settlement money” from the Sellers. We must first consider whether the causes of action fall within the purview of the anti-SLAPP law. They do.

The Sellers contend their complaint is not subject to an anti-SLAPP motion because filing a frivolous lawsuit is not protected petitioning activity. In making this argument, they steadfastly ignore our Supreme Court’s contrary pronouncement contained in Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733 (Jarrow). In Jarrow, our Supreme Court unambiguously held a malicious prosecution action “falls within the ambit of a ‘cause of action against a person arising from any act . . . in furtherance of the person’s right of petition’ (§ 425.16, subd. (b)(1)), as statutorily defined.” (Id. at p. 734.) Simply put, “malicious prosecution causes of action fall within the purview of the anti-SLAPP statute. [Citations.]” (Id. at p. 735; see Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 659 [anti-SLAPP motion “particularly appropriate when action sought to be stricken is one for malicious prosecution”].)

Our Supreme Court’s recent decisions in Flately v. Mauro (2006) 39 Cal.4th 299 (Flately) and Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260 (Soukup), do not support the Sellers.[4] Both cases considered the applicability of the SLAPP statute when the underlying activity or action was “illegal as a mater of law.”

In Flately, the defendant’s acts that formed the basis for the plaintiff’s lawsuit constituted criminal extortion as a matter of law and thus were not protected by the SLAPP statute. (Flately, supra, 39 Cal.4th at p. 330.) Soukup considered the applicability of the SLAPP statute to “SLAPPbacks” (i.e., a malicious prosecution/abuse of process action that arises out of a prior action that was itself dismissed pursuant to an anti-SLAPP motion). (§ 425.18, subd. (b)(1).) A SLAPPback lawsuit is not subject to an anti-SLAPP motion if the underlying lawsuit was “illegal as a matter of law.” (§ 425.18, subd. (b)(1).)

In Soukup, the court concluded there had been no showing the lawsuit underlying her SLAPPback action was “illegal as a matter of law” because the plaintiff could not demonstrate with particularity any statute the defendants had violated by filing the underlying action--a generalized claim the defendants’ conduct was illegal would not suffice. (Soukup, supra, 39 Cal.4th at p. 287.) Here, there nothing to support a suggestion that Anderson’s filing of the underlying action on behalf of Pacholik and Taylor was illegal as a matter of law. The Sellers’ point to no statutes that were violated and their general allegations that Anderson’s conduct was “illegal” do not suffice.

The current lawsuit arises out of Pacholik’s and Taylor’s exercise of their right to petition. Each cause of action (malicious prosecution, abuse of process, and extortion) is premised upon the allegation that they, and their attorney Anderson, improperly filed the underlying complaint to coerce the Sellers into returning the full deposit. Accordingly, the current complaint was subject to an anti-SLAPP motion brought by them and their attorney. (See White v. Lieberman (2002) 103 Cal.App.4th 210, 221 [attorney acting in representative capacity as advocate for clients is entitled to bring anti-SLAPP motion in malicious prosecution case]; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1420-1422.)

3. “Probability of Prevailing” Prong

We next consider whether the Sellers met their burden to establish a prima facie case as to any of their causes of action. They did not.

“In order to establish a probability of prevailing for purposes of section 425.16, subdivision (b)(1), ‘the plaintiff need only have “‘stated and substantiated a legally sufficient claim.’” [Citation.] “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.’” [Citation.]’ [Citation.] The plaintiff’s burden [is] what the Supreme Court has referred to as the ‘minimal merit’ prong of section 425.16, subdivision (b)(1) [citation] . . . . [Citation.] ‘A plaintiff is not required “to prove the specified claim to the trial court”; rather, so as to not deprive the plaintiff of a jury trial, the appropriate inquiry is whether the plaintiff has stated and substantiated a legally sufficient claim. [Citation.]’ [Citation.]” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 675, fn. omitted (Peregrine).)

a. Malicious Prosecution

To prevail on their cause of action for malicious prosecution, the Sellers were required to demonstrate “‘”that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in [their] favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].”’ [Citation.]” (Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 313; Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871-872 (Sheldon Appel).) The Sellers failed in their burden on every element.

A final termination favorable to the Sellers was a necessary element of their malicious prosecution action. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.) There was a favorable adjudication of Pacholik’s and Taylor’s claims against the Sellers on the underlying complaint by virtue of the order granting the summary judgment motion on the complaint. There was no final termination of the action favorable to the Sellers as the Sellers’ cross-complaint against all the Buyers had not been resolved. (See Wilson v. Wilson (1978) 78 Cal.App.3d 226, 230-231; Rich v. Siegel (1970) 7 Cal.App.3d 465, 469 (Rich).) No judgment had been entered, and Pacholik’s and Taylor’s appeal rights had not expired. The order granting the Seller’s motion for summary judgment against Pacholik and Taylor on the complaint could not support a malicious prosecution action. (Rich, supra, 7 Cal.App.3d at p. 469; Gibbs v. Haight, Dickson, Brown & Bonesteel (1986) 183 Cal.App.3d 716, 721; Friedman v. Stadum (1985) 171 Cal.App.3d 775, 778-779.)

The Sellers also failed to establish the probable cause element of their malicious prosecution cause of action. The probable cause element requires an “objective determination of the ‘reasonableness’ of the defendant’s conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable.” (Sheldon Appel, supra, 47 Cal.3d at p. 878; Zamos v. Stroud (2004) 32 Cal.4th 958, 970-971 (Zamos).) The key question is “whether any reasonable attorney would have thought the claim tenable . . . .” (Sheldon Appel, supra, 47 Cal.3d at p. 886; accord, Zamos, supra, 32 Cal.4th at p. 971.) Under this standard, lawyers and their clients do not lack probable cause when they “present issues that are arguably correct, even if it is extremely unlikely that they will win. [Citation.]” (Hufstedler, Kaus & Ettinger v. Superior Court (1996) 42 Cal.App.4th 55, 71.) Below, and on appeal, the Sellers barely mention the probable cause element of the malicious prosecution tort. They simply state in one sentence (with no supporting analysis or legal authority) that lack of probable cause is evident from Pacholik’s and Taylor’s “lack of standing” as plaintiffs in the underlying complaint.[5] But prevailing on the standing issue does not establish lack of probable cause as a matter of law. (See Jarrow, supra, 31 Cal.4th at p. 742 [defense summary judgment underlying claim did not establish lack of probable cause as a matter of law because counsel and clients have right to present issue if arguably correct].) As to standing, Anderson provided his declaration explaining the facts known to him at the time the underlying complaint was filed--namely, all three of the Buyers were going to buy the house together and he understood Baskin was advancing the funds for the deposit on behalf of the “informal partnership.” If the $100,000 were lost, Anderson believed the loss would be to the partnership, not just to Baskin. Additionally, Anderson believed Pacholik and Taylor had standing to assert their other tort causes of action because the loss of the $100,000 affected the partnership by diminishing the amount they had for acquiring a residence. The Sellers have not provided any evidence or legal analysis establishing Anderson’s position was objectively unreasonable.

As to malice, the Sellers offer even less, stating only that malice should be inferred from the lack of probable cause. Jarrow noted, “‘Merely because the prior action lacked legal tenability, as measured objectively . . . without more, would not logically or reasonably permit the inference that such lack of probable cause was accompanied by the actor’s subjective malicious state of mind.’ [Citation.]” (Jarrow, supra, 31 Cal.4th at p. 743.) The Sellers offered no evidence supporting a finding of malice.

b. Abuse of Process

To prevail on their abuse of process cause of action, the Sellers were required to establish “‘”first, an ulterior purpose, and second, a willful act in the use of the process not proper in the regular conduct of the proceeding.”’” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168 (Oren Royal Oaks).) They have not demonstrated a probability of prevailing on this cause of action.

To the extent the Sellers’ abuse of process cause of action is based on Anderson’s alleged comment to their attorney, Westreich, about recording a lis pendens, the comment cannot support the cause of action. “[T]he recordation of a lis pendens is not a ‘process.’ [Citation.]” (Palmer v. Zaklama (2003) 109 Cal.App.4th 1367, 1380.) Accordingly, “The recordation of a notice of lis pendens, even if done for an improper purpose, is not a valid basis for a cause of action for abuse of process . . . . [Citation.]” (Id. at p. 1381.)

To the extent the Sellers’ abuse of process cause of action is premised upon Anderson’s filing the underlying complaint, allegedly without probable cause, for the improper purpose of coercing them into returning the entire $100,000 deposit to his clients, these alleged actions as a matter of law do not support a claim for abuse of process. As our Supreme Court noted in Oren Royal Oaks, “[W]hile a defendant’s act of improperly instituting or maintaining an action may, in an appropriate case, give rise to a cause of action for malicious prosecution, the mere filing or maintenance of a lawsuit--even for an improper purpose--is not a proper basis for an abuse of process action.” (Oren Royal Oaks, supra, 42 Cal.3d at p. 1169; see also Warren v. Wasserman, Comden & Casselman (1990) 220 Cal.App.3d 1297, 1300.)

c. Extortion

The Sellers’ third cause of action was for “extortion” alleging Anderson filed frivolous claims by Pacholik and Taylor to extort the entire deposit out of them by creating fear in the Sellers that they could suffer “a great monetary damages award for ostensibly sympathetic plaintiffs[.]”

“However denominated (e.g., extortion, menace, duress), our Supreme Court has recognized a cause of action for the recovery of money obtained by the wrongful threat of criminal or civil prosecution. [Citations.] It is essentially a cause of action for moneys obtained by duress, a form of fraud. [Citation.]” (Fuhrman v. California Satellite Systems, Inc. (1986) 179 Cal.App.3d 408, 426 (Fuhrman), disapproved on other grounds in Silberg v. Anderson (1990) 50 Cal.3d 205, 212-213.) “To be actionable the threat of prosecution must be made with the knowledge of the falsity of the claim.” (Fuhrman, supra, 179 Cal.App.3d at p. 426.) Furthermore, the plaintiff must have actually “paid the money demanded by defendants,” to have a cognizable cause of action. (Id. at p. 428.)

The Sellers’ extortion cause of action failed for two reasons. First, as the trial court noted, the Sellers never actually paid any amount of money to the defendants as a result of the allegedly improper conduct of including Pacholik and Taylor as plaintiffs in the underlying action. The deposit had been released by Cruz to the Sellers, who then returned the money to Cruz and the entire deposit was interpleaded. The Sellers argue that by returning the money to Cruz so it could be interpleaded, they were deprived of its use while the dispute was being litigated. They cite Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062, 1081, for the proposition that merely being deprived of the use of money is sufficient to establish a civil cause of action for recovery of money obtained by duress. The problem is they cite to a dissenting opinion, and the dissent was discussing criminal extortion.

The Sellers’ extortion cause of action also fails for another reason not mentioned by the trial court. The threat of prosecution must be made with “knowledge of the falsity of the claim.” (Fuhrman, supra, 179 Cal.App.3d at p. 426.) The mere fact Pacholik’s and Taylor’s claims were rejected on the motion for summary judgment does not establish Anderson had knowledge of falsity. As we have already discussed above, the Sellers have presented no evidence or legal analysis demonstrating Anderson lacked probable cause to file the underlying action.

4. Motion to Vacate/Motion to Reconsider

The Sellers contend the trial court erred by denying their motion to vacate and reconsider the order granting Anderson’s anti-SLAPP motion. There was no error.

The Sellers sought to have court vacate the order under section 473 because it was entered before the Sellers filed their objections to the proposed statement of decision. Such a motion lies within the sound discretion of the trial court and its decision will not be disturbed on appeal absent abuse of that discretion. (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 319.)

The proposed statement of decision was served by mail on March 22 and the Sellers had 20 days to serve and file their objections (see Cal. Rules of Court, rule 232(c) & § 1013, subd. (a) [15 days plus 5 days when service is by mail]), but the order was signed on April 6. As this court noted in Heaps v. Heaps (2004) 124 Cal.App.4th 286, 292 (Heaps), “premature signing of a proposed statement of decision does not constitute reversible error unless actual prejudice is shown.”

The trial court did not abuse its discretion by finding there was no prejudice. When it denied the motion to vacate, the trial court considered the Sellers’ objections and found they were not well taken. We agree. Three of the four objections were completely inconsequential. The remaining objection was to language indicating the malicious prosecution cause of action failed because there was no showing of a “favorable termination” and there was no final judgment. The Sellers wanted the statement of decision to indicate the ruling was based only on the lack of a final termination--not the lack of a “favorable termination” because the order granting the summary judgment motion on the complaint constituted a favorable termination as to Pacholik and Taylor. But that objection went to the legal basis for the decision, not to “inconsistencies between the court’s ruling and the document that is supposed to embody and explain that ruling.” (Heaps, supra, 124 Cal.App.4th at p. 292.) Furthermore, given that we conduct a de novo review of the trial court’s ruling on the anti-SLAPP motion, any errors in the statement of decision are harmless. (See Bandt v. Board of Retirement (2006) 136 Cal.App.4th 140, 163; Soto v. State of California (1997) 56 Cal.App.4th 196, 199.)

The trial court also properly denied the section 1008 motion to reconsider its ruling on Anderson’s anti-SLAPP motion. The order granting the anti-SLAPP motion and striking the Sellers’ complaint had already been entered and constituted a judgment. (DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 564; see also §§ 425.16, subd. (i) & 904.1, subd. (a)(13) [order granting anti-SLAPP motion immediately appealable].) The trial court lacks jurisdiction to grant reconsideration after a judgment or order of dismissal has been entered. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859, fn. 29; APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 180.)

Furthermore, the Sellers’ showing would not have justified granting reconsideration. The Sellers contended the post-order settlement. which resulted in the dismissal of the underlying action (including the complaint and cross-complaint), constituted a final disposition of the matter and satisfied the “favorable termination” element of the malicious prosecution cause of action. Not so. “Where the underlying litigation ends by way of a negotiated settlement, there is no favorable termination for the purposes of pursuing a malicious prosecution action. [Citations.]” (Ferreira v. Gray, Cary, Ware & Freidenrich (2001) 87 Cal.App.4th 409, 413.)

DISPOSITION

The judgment is affirmed. Respondent shall recover his costs on appeal and attorney fees pursuant to section 425.16, subdivision (c), in an amount to be determined by the trial court.

O’LEARY, ACTING P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.

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[1] All further statutory references are to the Code of Civil Procedure.

[2] The Sellers’ apparently attempted to get a judgment entered against Pacholik and Taylor on the underlying complaint, but the trial court refused because it would have been premature. The Sellers appear to now recognize that no judgment could be entered against Pacholik and Taylor as a result of the Sellers’ successful summary judgment motion because the motion (and order) affected only the complaint. The Sellers’ cross-complaint against Pacholik and Taylor was unaffected. Entry of a judgment at the time would have violated the one final judgment rule. (See Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701-702 [“there can be but one final judgment in an action,” and it must determine the rights of the parties regarding all matters in controversy].)

[3] At the same hearing, the court considered the Sellers’ motion for summary judgment or summary adjudication against Baskin and Richland Corporation on the complaint in the underlying action. The court denied summary judgment, but granted summary adjudication on some of the causes of action.

[4] The parties have submitted supplemental briefing addressing the applicability of these cases.

[5] The Sellers also refer to the fact that in the settlement agreement with attorney Cruz, the plaintiffs “retracted” their allegations as to Cruz. But given that Cruz is not a party to the current malicious prosecution action, allegations against him are of no consequence.