Villanueva v. Cyprexx Services
Filed 4/26/13 Villanueva v. Cyprexx Services CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
JUN VILLANUEVA et al.,
Plaintiffs and Appellants,
v.
CYPREXX SERVICES, LLC et al.,
Defendants and Respondents.
D060860
(Super. Ct. No. 37-2011-00086445-
CU-WE-CTL)
APPEAL from
judgments of the Superior Court
of San Diego County,
Randa Trapp, Judge. Affirmed.
Plaintiffs
and appellants Jun Villanueva and Sharon Balverde sued defendants and
respondents Cyprexx Services, LLC (Cyprexx) and attorney Tyneia Merritt after
Cyprexx auctioned Villanueva's personal belongings following the
residence. The trial court sustained
without leave to amend the demurrer of Cyprexx and granted defendant Merritt's
special motion to strike the complaint as a strategic lawsuit against public
participation (Code Civ. Proc.,
name="_ftnref1" title="">[1]
§ 425.16, commonly known as the anti-SLAPP statute). Plaintiffs appeal from the ensuing judgments
in defendants' favor. They contend their
complaint states causes of action for wrongful eviction, conversion, violation
of the Servicemembers Civil Relief Act
(SCRA) (50 U.S.C. Appen. § 501, et seq.), replevin or claim and delivery,
and unjust enrichment, and the trial court should have granted them leave to
amend. They further contend the court
erred in granting Merritt's anti-SLAPP motion because Merritt did not engage in
protected speech, and they demonstrated a likelihood of prevailing on their
SCRA cause of action. They argue the
court should have granted them leave to amend to state a
against Merritt. We affirm the
judgments.
FACTUAL AND
PROCEDURAL BACKGROUND
The
background facts are taken from plaintiffs' verified complaint and its attached
exhibits; we accept as true the properly pleaded material factual allegations
together with facts that may properly be judicially noticed. (Crowley
v. Katleman (1994) 8 Cal.4th 666, 672; Debrunner
v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4th 433, 435.)
In February
2007, Villanueva purchased a house at 626 Arroyo Seco Drive in San
Diego (the Arroyo property), executing a note and deed
of trust naming Plaza Home Mortgage, Inc. as the lender. Villanueva was in the military, had completed
two tours of duty in Iraq,
and at the time of the complaint's filing, was deployed on active duty. Balverde was authorized to store her personal
possessions at the Arroyo property while Villanueva was away.
In July
2008, GMAC Mortgage, LLC (GMAC) acquired title to the property in a trustee's
sale. In October 2008, Merritt, on
behalf of GMAC, filed an unlawful detainer action (the first unlawful detainer
action) against Villanueva and Does 1-100.
Substitute service of the summons and complaint was effected on
Balverde. That same month, Merritt
executed a declaration of nonmilitary status, declaring under oath that none of
the defendants in the action were in the military. In November 2008, a default judgment was
entered against Villanueva and Balverde.
GMAC did not execute on the judgment, and in January 2009, GMAC filed a
notice of rescission of the trustee's deed upon sale. The notice states that the July 2008
foreclosure sale was conducted in error due to a failure to communicate
conditions that would have warranted its cancellation.
In May
2009, Deutsche Bank National Trust Company (Deutsche Bank) acquired title to
the Arroyo property in a trustee's sale, and that month Merritt served a notice
to quit under section 1161a, subdivision (b)(3) on Villanueva "and
all others in possession" (capitalization omitted) residing at the Arroyo
property. The notice stated that the
Arroyo property was purchased at a nonjudicial foreclosure sale, and demanded
that Villanueva deliver possession or be subject to eviction proceedings. Service was effected by posting the notice to
quit in a conspicuous place on the Arroyo property.
In July
2009, Merritt filed a verified second unlawful detainer action on behalf of
Deutsche Bank, naming Balverde and Does 1-100.
Deutsche Bank alleged it had purchased the Arroyo property at a
trustee's sale in April 2009, and that Balverde remained in possession of the
premises, but failed to surrender possession within the period set forth in the
notice to quit.
In
September 2009, Merritt filed a request for entry of default against Balverde,
and also executed another affidavit of nonmilitary status stating under oath
that no defendant was in the military.
In November
2009, Merritt filed a writ of possession of the Arroyo property on behalf of
Deutsche Bank. The writ states that
judgment was entered on October 13,
2009. The writ of possession
issued on November 5, 2009. Balverde eventually received a notice to
vacate from Merritt. At some point,
Deutsche Bank retained Coldwell Bank to sell the property, and Cyprexx was
retained to reclaim the personal property and dispose of it.
On December 5, 2009, Balverde wrote to
Merritt, provided her copies of Villanueva's deployment documents, and advised
her that Villanueva was stationed in Okinawa but
unreachable as he was on a special assignment in Thailand. Balverde also retained an attorney, who
several days later contacted a Coldwell Bank representative, Steve Freisen, to
inform him that Villanueva was deployed overseas with the military and wanted
time to remove his personal possessions from the foreclosed Arroyo
property. Balverde's attorney asked
Coldwell Bank to refrain from entering and removing Villanueva's belongings
until his return to the United States
in February 2010.
In November
2009, the levying officer executed the writ of possession of the Arroyo
property. Balverde's attorney contacted
Cyprexx to advise them of Villanueva's military status. Balverde checked with Friesen, who told her she
would have more time to remove the personal property, and she consequently
waited for a further response.
Defendants, however, removed or had removed all of plaintiffs' personal
property stored at the Arroyo property and had it sold at a public auction. In February 2010, Balverde spoke with Friesen
again to ask about the status of her request, but was told that the property
had been auctioned off, sold or otherwise discarded. Balverde confirmed with Cyprexx that all of
her and Villanueva's personal property had been sold.
In February
2011, plaintiffs filed a verified complaint against defendants Cyprexx,
Merritt, and the other entities,
name="_ftnref2" title="">[2]
setting forth causes of action for wrongful eviction, replevin, conversion,
unjust enrichment and violation of the SCRA.
Merritt
filed a special motion to strike the complaint under section 425.16. She argued all of the complaint's allegations
arose out of the exercise of her right and duty to petition the court on her
clients' behalf, and the statute protected even her misstatement in the
declaration of nonmilitary status. She
further argued none of the causes of action stated a claim because there were
no allegations she had engaged in any of the injurious conduct, namely, seizing
control and selling any of the personal property. Finally, Merritt argued that none of the
causes of action were legally sufficient in that she had nothing to do with the
trustee's sale; Villanueva had no right, title or interest in the Arroyo property
at the time of Balverde's eviction; Merritt's actions were not wrongful;
Merritt had no legal obligation to return possession of the premises to
Balverde or store Villanueva's possessions on the Arroyo property; plaintiffs
never made a proper request for surrender of the personal property, which was
not particularly described in the verified complaint; the SCRA did not apply to
plaintiffs or provide their requested remedy; and the complaint's allegations
negated any possible causation. Finally,
Merritt argued that as a result of the litigation privilege of Civil Code
section 47, subdivision (b)(2), plaintiffs could not establish a probability of
prevailing on the merits. Merritt asked
for an award of attorney fees and costs.
Merritt
filed a declaration in support of her anti-SLAPP motion in which she averred
that before filing the first unlawful detainer complaint on GMAC's behalf and
up to November 18, 2008,
when the judgment was entered for possession, she had never received any notice
or communication from plaintiffs that Villanueva was a service member or on
active duty.
title="">[3]
Thereafter,
Cyprexx separately demurred to the verified complaint on grounds that as to all
causes of action, the complaint failed to state facts sufficient to constitute
a cause of action; the wrongful eviction cause of action was barred by the
one-year statute of limitations; and Balverde lacked standing to assert a claim
for violation of the SCRA.
In
opposition to Merritt's anti-SLAPP motion, plaintiffs argued section 425.16 did
not apply to speech and petitioning that was illegal as a matter of law, and
the statute did not preempt the SCRA.
They further argued they demonstrated a probability of prevailing on the
merits on all of their causes of action based on a declaration filed by Merritt
in opposition to Balverde's motion to vacate the underlying judgment in the
second unlawful detainer action. In that
declaration, Merritt averred that she did not name Villanueva in that action
because when she filed it, she was "informed and believed, and continue[d]
to believe, that Balverde was the only occupant of the [Arroyo property], and
that Balverde was the only person who claimed a right to possess the
Premises." Merritt stated that her
belief was based on information she had obtained in October 2008 in the first
unlawful detainer action, when Balverde filed a prejudgment claim of right to
possession of the Arroyo property (§ 1174.25) by virtue of an alleged oral
rental agreement between Villanueva and GMAC, which, according to Merritt, was
inconsistent with any claim of possessory right on Villanueva's part.
Plaintiffs
also opposed Cyprexx's demurrer. They
asked for leave to file a first amended complaint; argued they had standing
under the SCRA; and asserted that but for Cyprexx's "wrongful
conduct," they would not have been damaged.
Following
argument on the matter, the trial court granted Merritt's anti-SLAPP motion and
sustained Cyprexx's demurrer without leave to amend. As to Merritt, it ruled all of the causes of
action arose from Merritt's representation of clients in the unlawful detainer
actions, and thus Merritt had met her initial burden to show the action was
based on protected speech and petitioning activity. It further ruled plaintiffs did not show the
gravamen of their complaint arose from Merritt's allegedly illegal activity;
the evidence showed Merritt did not know Villanueva was in the military when
she executed the declaration of nonmilitary status in the first unlawful
detainer action, Villanueva was not a party or indispensable party to the
second unlawful detainer action, and there was no evidence Balverde was in the
military at the time. Its ruling
detailed why plaintiffs had not demonstrated a probability of prevailing on the
merits on any of their causes of action.
As to Cyprexx,
the court ruled the causes of action failed in that plaintiffs had not alleged
Cyprexx (a) had any involvement in the foreclosure sale; (b) had possession of
plaintiffs' personal property at the time the action was commenced; (c) did any
wrongful act; or (d) unjustly received or wrongfully retained any benefit at
plaintiffs' expense. As for the SCRA
cause of action, it ruled the SCRA did not apply to any challenge to the
foreclosure sale, and to the extent plaintiffs challenged the default judgment
in the unlawful detainer action, the SCRA did not provide for a private right
of action. The court denied plaintiffs
leave to amend, stating they had not informed the court how the complaint could
be amended to state any cause of action against Cyprexx.
The court
thereafter entered judgments in favor of Merritt and Cyprexx. Plaintiffs appeal from those judgments.
DISCUSSION
I. Cyprexx's
Demurrer
A.
In
reviewing an order sustaining a demurrer, "our standard of review is
clear:
' "We treat the demurrer as admitting all material
facts properly pleaded, but not contentions, deductions or conclusions of fact
or law. [Citation.] We also consider matters which may be
judicially noticed."
[Citation.] Further, we give the
complaint a reasonable interpretation, reading it as a whole and its parts in
their context. [Citation.] When a demurrer is sustained, we determine
whether the complaint states facts sufficient to constitute a cause of
action. [Citation.] And when it is sustained without leave to
amend, we decide whether there is a reasonable possibility that the defect can
be cured by amendment: if it can be, the trial court has abused its discretion
and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.]
possibility is squarely on the plaintiff.' " (Zelig
v. County
1112, 1126; see Coffman Specialties, Inc.
v. Department of Transportation (2009) 176 Cal.App.4th 1135, 1144.) A showing that an amendment would cure the
defect may be made for the first time to the reviewing court. (
206 Cal.App.4th 594, 606.)
The
judgment of dismissal will be affirmed if proper on any grounds stated in the
demurrer, whether or not the court acted on that ground. (San
Diego City Firefighters, Local 145, v. Board of Administration etc.,
B.
Plaintiffs
contend the complaint states a cause of action for conversion. In part, they argue it was sufficient to
plead that Cyprexx disposed of their property; that it is not necessary for a
conversion action that they plead and prove Cyprexx's actions were
"wrongful." They maintain
alternatively that the complaint alleges conversion through multiple wrongful
acts, namely, that Cyprexx violated the SCRA when it removed and sold
Villanueva's personal property without a valid court order, and did not comply
with Civil Code section 1988 in disposing of the property.
We reject
plaintiffs' first contention. It is
settled that " ' "[c]onversion is the wrongful exercise of dominion
over the property of another." ' "
(Plummer v. Day/Eisenberg, LLP (2010)
184 Cal.App.4th 38, 45; see also Hernandez
v. Lopez (2009) 180 Cal.App.4th 932, 939; Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1065;
Cal.App.4th 445, 451-452.) The
foundation for a conversion claim " 'rests upon the unwarranted
interference by defendant with the dominion over the property of the plaintiff
from which injury to the latter results.' " (Burlesci v. Petersen, at p. 1066.)
Plaintiffs
point to the foregoing authorities, which state the elements in the
disjunctive, i.e., that a conversion can occur by proving a "wrongful act
rights." (E.g.,
added.) They argue there need not be a
wrongful act if there was a mere disposition of property rights. This argument is unavailing, however, because
the gist of the tort is wrongful dominion by the defendant (
term "wrongful" to qualify both the act and the disposition of the
property rights. If the disposition is
not wrongful in some manner—if the person or entity did not do something
wrong—the action would not constitute a tort.
Plaintiffs miss the mark when they argue neither good or bad faith are
at issue in a conversion action. (See
783, 793.) Good and bad faith, as well
as knowledge, ignorance or mistake, go to a party's intent or motives, which
are no defense to a claim for conversion (see Poggi v. Scott (1914) 167 Cal. 372, 375
those matters are not pertinent to whether the defendant's interference with
dominion over property is unwarranted.
Plaintiffs'
second argument—that they specifically alleged violations of law—is also
misplaced. To state
a cause of action for
"ownership or right to possession of the property at the time of the
conversion; the defendant's conversion by a wrongful act or disposition of
property rights; and damages." ' "
(Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489,
1507.) As against a general or special
demurrer, "if plaintiff's ownership of the property is properly alleged
and there is an averment that the defendant converted the same, a cause of
action [for conversion] is sufficiently stated . . . ." (Baird
v. Olsheski (1929) 102 Cal.App. 452, 454.)
Further, "no particular form of words is essential in averring a
conversion, provided the fact of the conversion is sufficiently stated, and it
is unnecessary to set forth in what way or by what means the conversion was
accomplished [citations], or to allege that the property was wrongfully or
unlawfully converted, since the allegation that it was converted, which is a
conclusion of fact [citations], implies a wrongful act [citations]." (Baird v. Olsheski, at p. 454, citing Hutchings v. Castle (1874) 48 Cal. 152; see also
Cal.App.2d 700, 704 [complaint stated a cause of action for conversion where
plaintiff alleged it owned a business, notified the defendant of his ownership
of the business, defendant surreptitiously caused plaintiff's locks to be
removed and equipment and other property to be removed, defendant refused to
account for the items, and plaintiff alleged specific items of damage caused by
the removal]; MacDonald v. Kingsley
(1957) 149 Cal.App.2d 376 [complaint stated a cause of action for conversion
where it alleged ownership and possession of the property converted, the
forcible and unlawful taking thereof by the defendants, and the value of said
property].) In Taylor v. S & M Lamp Co., the court stated, "The failure
of the complaint to use such terms as 'fraud,' 'to defraud creditors,'
'unlawfully,' or 'wrongfully' does not render the pleading defective where, as
here, such conduct and intent is implied from the ultimate facts
alleged." (Taylor v. S & M Lamp Co., at p. 705.)
A demurrer
is properly sustained, however, where the allegations of the complaint, or
attached judicially noticeable documents, negate a cause of action as a matter
of law. (See e.g., Shopoff & Cavallo LLP v. Hyon, supra, 167 Cal.App.4th at pp. 1507-1508; McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72,
78-79 [general demurrer will lie where the complaint has included allegations
that clearly disclose some defense or bar to recovery]; Flores v. Kmart Corp. (2012) 202 Cal.App.4th 1316, 1324 [demurrer
based on an affirmative defense will be sustained where the face of the
complaint discloses that the action is necessarily barred by the
defense].) In Shopoff, for example, a complaint failed as a matter of law to
state a claim for conversion against a trustee of allegedly converted
settlement recovery proceeds who had filed an interpleader action, which
avoided the risk of liability to the person entitled to those proceeds. (Shopoff,
at p. 1508.) As a matter of law, the
trustee did not exercise dominion over the funds sufficient to convert them to
his own use. (Ibid.)
Here,
plaintiffs' complaint places responsibility on the foreclosing entity, Deutsche
Bank (also referred to as the "landlord"), for the wrongful seizure
and sale of plaintiffs' personal property.
sold at a public auction. They allege
that Cyprexx was merely a subcontractor of Deutsche Bank, and that Cyprexx was
retained to reclaim the personal property and conduct the sale. Plaintiffs provide no authority for the
proposition that under such circumstances, the third party agent for the
landlord is vicariously responsible or liable for the landlord's
conversion. We conclude plaintiffs
cannot establish that by arranging to sell the property at a public auction at
the direction of Deutsche Bank, Cyprexx exercised dominion over the funds or
converted them to Cyprexx's own use
so as to state a cause of action against Cyprexx for conversion.
Eviction
"[A]
person in peaceable possession of real property may recover, in an action
sounding in tort, damages for injuries to his person and goods caused by the forcible
entry of one who is, or claims to be, the lawful owner or possessor . . .
." (Daluiso v. Boone (1969) 71 Cal.2d 484, 486.) The essential elements of a tort claim for
wrongful entry or eviction are (1) the plaintiff's peaceable possession, and
(2) the defendant's forcible entry. (Spinks
v. Equity Residential Briarwood Apartments
(2009) 171 Cal.App.4th 1004, 1040.) The defendant's title or right of possession
is no defense to such action. (Daluiso
v. Boone, at p. 486.)
Plaintiffs
contend the complaint adequately alleges both elements of a wrongful eviction
cause of action. They argue their
allegations that Villanueva resided at the Arroyo property and stored his
possessions there was sufficient to establish his peaceable possession; that
the fact he lost title to his home through a nonjudicial foreclosure is
immaterial. They further argue they made
an adequate allegation of Cyprexx's claim of lawful possession by alleging
Cyprexx had been retained to reclaim and had seized plaintiffs' personal property
from the Arroyo property.
We
conclude, however, plaintiffs cannot establish the essential elements of
wrongful eviction against Cyprexx.
Plaintiffs allege that Cyprexx was the entity that seized their
the entity retained by Defendants as sub contractors [sic] for reclaiming the Personal Property and to conduct a sale
and/or other disposition of the Personal Property." They do not allege that Cyprexx dispossessed
them from the Arroyo property, and indeed, the complaint specifically alleges
that Deutsche Bank was the entity
that obtained the writ of possession evicting Balverde from the premises. By statute, a forcible
peaceably upon real property, turns out by force, threats, or menacing conduct,
the party in possession." (§ 1159,
subd. (2).) Even assuming a forcible
entry occurred, plaintiffs' allegations demonstrate it was not done by Cyprexx.
We observe
further that plaintiffs' complaint indicates the sheriff served Balverde with
the writ of possession of the Arroyo property (Judicial Council form EJ-130,
attached as exhibit 9 of plaintiffs' complaint) on November 10, 2009, that Balverde was removed
from the Arroyo property on November
30, 2009, and that the sheriff returned the writ on December 1, 2009. Plaintiffs allege the writ of possession
"was used to remove and sell or otherwise dispose of ALL of plaintiffs
Villanueva's and Balverde's Personal Property." Though exhibit 9 contains only the first side
of the two-sided Judicial Council form, we take judicial notice that the
reverse of the form includes a statement that any personal
property remaining on the real property after the
landlord is in possession will be disposed of under section 1174 unless the
tenant pays the reasonable cost of storage and takes possession of the personal
property not later than 15 days after the landlord takes possession of the real
property. (§ 715.010, subd.
(b)(3).) As of December 5, 2009, when Balverde
wrote Merritt and informed her that she had Villanueva's general power of
attorney, Balverde had notice of her rights to reclaim the personal property
remaining on the Arroyo property, but did not timely exercise those rights on
her own behalf or on Villanueva's behalf as his legal representative.
D.
An action
for replevin or its statutory successor, claim and delivery, is intended to
obtain recovery of specific personal property.
(Stockton Morris Plan Co. v.
Mariposa County (1950) 99 Cal.App.2d 210, 215; Simms v. NPCK Enterprises, Inc. (2003) 109 Cal.App.4th 233,
241.) In order to obtain a judgment on a
replevin action, "it must be shown that possession was in the defendant at
the time of the beginning of the action or that he had the power to make
delivery of the personal property . . . ."
(Stockton Morris, at p. 215.)
In support
of this cause of action, plaintiffs allege that defendants "have
wrongfully and intentionally seized, destroyed and or sold said personal
property" and that the "wrongful and unlawful possession of the
property occurred in December[ ] 2009."
As Cyprexx points out, plaintiffs' introductory allegations are that at
the time of the filing of the complaint, the personal property at issue had already
been sold at public auction. These
allegations defeat the replevin cause of action as a matter of law, as they
demonstrate Cyprexx did not have the power to deliver the personal property at
the time of the complaint's filing.
E.
" '
"[T]here is no cause of action in California
for unjust enrichment." ' " (
quoting Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370,
and see Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th
779, 793; McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457,
1490 ["unjust enrichment is a basis for obtaining restitution based on
quasi-contract or imposition of a constructive trust"].) "Unjust enrichment is synonymous with
restitution." (Durell, at p. 1370.
defendants have been unjustly enriched by their "wrongful acts and
omissions" does not state a cause of action. (Levine,
at p. 1138.)
On review
of an order sustaining the demurrer, we nevertheless may assess whether
plaintiffs' allegations state a cause of action that may give rise to a right
to restitution. (McBride v. Boughton
(2004) 123 Cal.App.4th 379, 387-388.)
"There are several potential bases for a cause of action seeking
restitution. . . . [R]estitution may be awarded where the
defendant obtained a benefit from the plaintiff by fraud, duress, conversion,
or similar conduct. In such cases, the
plaintiff may choose not to sue in tort, but instead to seek restitution on a
quasi-contract theory . . . .
[Citations.] In such cases, where
appropriate, the law will imply a contract (or rather, a quasi-contract),
without regard to the parties' intent, in order to avoid unjust
enrichment." (McBride, at p.
388, fn. omitted.) Because we have not
found allegations sufficient to demonstrate that Cyprexx committed some
wrongdoing in which it obtained a benefit from plaintiffs, there is no basis to
allow plaintiffs' unjust enrichment claim to stand.
F. Violation
of the SCRA
"The
except criminal proceedings.
[Citation.] The purposes of the
national defense through protection extended . . . to servicemembers of the
United States to enable such
persons to devote their entire energy to the defense needs of the Nation; and
[¶] (2) to provide for the temporary suspension of judicial . . . proceedings .
. . that may adversely affect the civil rights of servicemembers during their
military service.' [Citation.] '[T]he SCRA must be
construed to prevent any disadvantage to a servicemember litigant resulting
from his or her military service' and 'must be "liberally construed to
protect those who have been obliged to drop their own affairs to take up the
burdens of the nation." ' " (
740-741.)
Under the
SCRA, no default judgment may be taken against persons in the military service
unless the plaintiff meets specified procedural requirements. Specifically, before entry of a default
judgment, the plaintiff must file a declaration stating whether or not the
defendant is in military service, or if plaintiff is unable to determine whether
the defendant is in military service, stating so. (50 U.S.C. Appen. § 521(b)(1).) One who makes or uses such an affidavit,
knowing it to be false, "shall be fined as provided in title 18, United
States Code, or imprisoned for not more than one year, or both." (50 U.S.C. Appen. § 521(c).)
In support
of their cause of action alleging violations of the SCRA, plaintiffs allege
generally that the SCRA permits military servicemembers to defend their
interests in court hearings or default proceedings. They then allege: "Villanueva was unable to protect his
interests, as the Foreclosing Defendants signed under penalty of perjury that .
. . Villanueva was non-military, in direct violation of [the SCRA], which
requires notification of service members on active duty. [¶] .
. . The Defendants failed to make a minimal search to discover whether or not .
. . Villanueva was deployed. Further, .
. . Balverde had sent documentation to Foreclosing Defendants, proving that not
only was . . . Villanueva in the military, but that . . . Balverde could not
contact him. [¶] . . . With utter disregard, the Defendants
moved forward with the default judgment.
Based on this fraudulent misrepresentation to the court, . . .
Villanueva was never afforded due process or his opportunity to be heard and
judgment was entered against him."
(Some emphasis and capitalization omitted.)
These
allegations seek to impose liability on the "foreclosing defendants"
otherwise identified in the pleading as GMAC or Deutsche Bank, for the default
judgment. As pointed out above, Cyprexx
was not a foreclosing defendant and there are no allegations stating it entered
or caused any judgment to be entered against Villanueva. Further, the complaint specifically alleges
that Merritt, on Deutsche Bank's behalf, signed a false declaration of
nonmilitary status, not Cyprexx. The
complaint accordingly cannot impose liability on Cyprexx for the filing of that
declaration assertedly in violation of the SCRA.
Nevertheless,
on appeal plaintiffs argue the complaint states violations of the SCRA against
Cyprexx, specifically under title 50 United States Code Appendix sections 531
and 537. They argue Cyprexx violated
title 50 United States Code Appendix section 537 by selling Villanueva's
possessions without a court order, and violated title 50 United States Code
Appendix section 531 by removing and selling the personal property from
Villanueva's home.
title="">[7]
1. Title
50 United
States Code Appendix Section 531
During a
period of military service of a servicemember, title 50 United States Code
Appendix section 531(a)(1)(A) prohibits a landlord or another person with
paramount title from evicting a servicemember or the servicemember's dependents
from a premises that is occupied "primarily as a residence" and
"for which the monthly rent does not exceed $2,400." Title 50 United States Code Appendix section
531 (a)(1)(B) prohibits a landlord or other person with paramount title from
"subject[ing] such premises to a distress during the period of military
service."
title="">[8] Neither of these prohibitions apply to
disposition of personal property following a nonjudicial foreclosure sale. And, in view of the SCRA's use of the terms
" 'landlord, rent, eviction,
and distress, courts
have construed the substantially similar predecessor statute to [title 50 United
States Code Appendix section] 531 as 'contemplat[ing] a landlord-tenant
relationship.' " (
Cotton Mills v. United States (4th Cir.1947) 164 F.2d 173, 176 & Arkless
v. Kilstein (E.D.Pa. 1944)
61 F.Supp. 886, 888 [the predecessor statute relates to disturbing the
landlord-tenant relationship because it uses the term agreed rent and
because it refers to a maximum monthly rent] & Lesher v. Louisville Gas
& Electric Co.,
a residence did not violate the predecessor statute because there was no
landlord-tenant relationship between the company and the bill payer].)
Here,
plaintiffs have not alleged any landlord-tenant relationship with Cyprexx, nor
can they in view of their allegations that Cyprexx was merely a subcontractor
retained by Deutsche Bank to sell the personal property remaining on the Arroyo
property. Nor have they alleged the
Arroyo property was premises "for which the monthly rent does not exceed
$2,400."
distress because Cyprexx's sale was not in "satisfaction of a past due
rent claim." Though courts must
construe the SCRA liberally (In re A.R.,
supra, 170 Cal.App.4th at p. 741), we
will not rewrite the statute to cover circumstances beyond the plain meaning of
its provisions to make it more just or fair.
(Thornton
204 Cal.App.4th 1403, 1419.)
2. Title
50 United
States Code Appendix Section 537
Title 50
United States Code Appendix section 537, entitled "Enforcement of storage
liens," provides, in pertinent part:
"(a) Liens [¶] (1) Limitation on foreclosure or
enforcement [¶] A person holding a lien on the property or
effects of a servicemember may not, during any period of military service of
the servicemember and for 90 days thereafter, foreclose or enforce any lien on
such property or effects without a court order granted before foreclosure or
enforcement." A lien under this
provision is defined as including "a
lien for storage, repair, or cleaning of the property or effects of a
servicemember or a lien on such property or effects for any other
reason." (50 U.S.C. Appen.
§ 537(a)(2).) The reference to
liens in title 50 United States Code Appendix section 537 encompasses only
liens for storage, repair or cleaning, or other liens similar in nature; it
does not encompass other specific types of liens governed by different sections
of the SCRA, such as liens for an installment contract, motor leases,
mortgages, or tax liens. (
2011) 826 F.Supp.2d 914, 917-920.)
Here,
Cyprexx's involvement was limited to the sale of plaintiffs' personal
possessions. There is no allegation that
Cyprexx held a storage lien or any other type of lien contemplated by title 50
United States Code Appendix section 537, and the complaint, as we have stated,
makes clear that Cyprexx was not responsible for the foreclosure sale. Under these circumstances, plaintiffs cannot
state a cause of action against Cyprexx for a violation of section 537 of the
SCRA. (Accord, United States v. B.C. Enterprises, Inc. (E.D.Va 2009) 667
F.Supp.2d 650, 657-659 [general manager of corporation who supervised and
directed the sale of servicemembers' vehicles at auction pursuant to storage
liens was as a matter of law not a "person holding a lien on the property
or effects of a servicemember" within the meaning of the SCRA because the
lien was held by the corporation, not by the general manager].)
II. Merritt's
Anti-SLAPP Motion
Plaintiffs
contend the trial court erred by granting Merritt's anti-SLAPP motion. They argue Merritt did not meet her burden to
show their complaint arose from any free speech or petition rights, and even if
she had, they established a probability of prevailing on the merits of their
cause of action for violations of the SCRA.
As we will explain, we disagree.
A.
Section
425.16 provides a procedural remedy to dispose of lawsuits that are brought to
chill or punish a party's valid exercise of constitutional rights to free
speech and to petition the government for redress of grievances. (Personal
Court Reporters, Inc. v . Rand
evaluation of an anti-SLAPP motion involves two steps. "[T]he trial court first determines
whether the defendant has made a threshold showing that the challenged cause of
action arises from protected activity.
[Citation.] 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 . . . .'
[Citation.] 'A cause of action
"arising from" defendant's litigation activity may appropriately be
the subject of a section 425.16 motion to strike.' [Citation.]
'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.]
"If the
the threshold showing,
it determines then
whether the plaintiff
has demonstrated a
probability of prevailing
on the claim.
[Citation.] 'In order
to establish a
probability of prevailing
on the claim
. . . , a plaintiff
anti-
" 'state[ ] and
sufficient claim.' " [Citations.]
way, the plaintiff
"must demonstrate
is both legally
sufficient and supported
by a sufficient
prima facie showing
of facts to
judgment if the
evidence submitted by
the plaintiff is
credited." '
" (Rusheen
v. Cohen (2006) 37 Cal.4th 1048, 1055-1056 (Rusheen).)
We review
de novo the trial court's order granting Merritt's special motion to
strike. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819.) A reviewing court will " 'independently
review the record to determine whether the asserted causes of action arise from
the defendant's free speech or petitioning activity, and, if so, whether the
plaintiff has shown a probability of prevailing. [Citations.]
We consider "the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based." [Citations.]
We do not reweigh the evidence, but accept as true all evidence
favorable to the plaintiff and evaluate the defendant's evidence only to
determine if it has defeated the evidence submitted by the plaintiff as a
matter of law. [Citations.] If the trial
court's decision denying an anti-SLAPP motion is correct on any theory
applicable to the case, we may affirm the order regardless of the correctness
of the grounds on which the lower court reached its conclusion.' " (Personal
Court Reporters, Inc. v. Rand, supra,
205 Cal.App.4th at pp. 188-189.)
B.
Plaintiffs
contend Merritt cannot meet her initial burden to show the causes of action
against her arise from protected activity.
They maintain their allegations show she engaged in illegal conduct that
is unprotected by the anti-SLAPP law, that is, naming only Balverde as a
defendant in the second unlawful detainer action and not Villanueva, who was
assertedly an indispensible party; attesting that the true names and capacities
of the Doe defendants were unknown; and knowingly filing a
false declaration of nonmilitary status (50 U.S.C. Appen. § 521(c)) in
connection with the second unlawful detainer action, which also violated the
Rules of Professional Conduct, rule 5-200, requiring candor before the
court.
Merritt
responds that plaintiffs' allegations all relate to her prosecution of the
unlawful detainer litigation, and thus all of the causes of action arise from
written or oral statements "made before a . . . judicial proceeding,"
or "made in connection with an issue under consideration or review by a .
. . judicial body," and the conduct on which her liability is based falls
within "any other conduct in furtherance of the exercise of the
constitutional right of petition . . . ."
(§ 425.16, subd. (e)(1), (2) & (4).)
Merritt is
correct. " 'The prosecution of an
unlawful detainer action indisputably is protected activity within the meaning
of section 425.16.' " (
(2008) 160 Cal.App.4th 1467, 1479; see also Rusheen,
supra, 37 Cal.4th at p. 1056 ["
'A cause of action "arising from" defendant's litigation activity may
appropriately be the subject of a section 425.16 motion to strike' "]; Dowling
v. Zimmerman (2001) 85
Cal.App.4th 1400, 1418-1420 [anti-SLAPP statute protected attorney's pro bono
representation of clients sued in unlawful detainer action that gave rise to
plaintiff's later claims against attorney for defamation, misrepresentation,
and intentional and negligent infliction of emotional distress].) Plaintiffs seek to impose liability on
Merritt solely for her filing of pleadings, including notices of default, in
connection with the unlawful detainer proceedings.
Merritt
further maintains that under Rusheen,
supra, 37 Cal.4th 1048 and Pollack
v. University of Southern California (2003) 112 Cal.App.4th 1416 even the
filing of an erroneous declaration of nonmilitary status is within the core
protection of the anti-SLAPP statute.
Plaintiffs, on the other hand, argue the anti-SLAPP does not apply under
Flatley v. Mauro (2006) 39 Cal.4th
299 (Flatley) and
Cal.App.4th 696, because Merritt's conduct was illegal.
In
confirmed that unlawful or criminal activities do not qualify for protection
under the anti-SLAPP law as protected speech or petitioning activities. (Flatley,
supra, 39 Cal.4th at pp. 317, 330
[attorney's conduct constituted criminal extortion]; Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 711.) The court explained, however, that the
illegality must appear "as a matter of law." (Flatley,
at p. 320.) That is, only where the defendant
"concedes, or the evidence conclusively establishes, that the assertedly
protected speech or petition activity was illegal as a matter of law" is
he or she precluded from using the anti-SLAPP law to strike the action. (Ibid.) "[W]hen the defendant's assertedly
protected activity may or may not be unlawful,
the defendant may invoke the anti-SLAPP statute unless the activity is unlawful as a matter of law." (Dwight
R., at p. 711.)
title="">[9] In Lefebvre
v. Lefebvre, supra, 199
Cal.App.4th 696, the appellate court held a defendant failed to show that false
police reports were not protected by the anti-SLAPP law, but in that case, the
trial court found that the record " 'conclusively' established" the
defendants' statements to police were illegal under Penal Code section 148.5. (Lefebvre,
at p. 701; see also Comstock v. Aber (2012)
212 Cal.App.4th 931, 951-952 & fn. 13 [summarizing the "unusual, if
not unique" facts in Lefebvre].)
Here,
plaintiffs' assertion of illegality does not meet Flatley's standard. Merritt
has not conceded, nor is the evidence conclusive, that her
filing of either declaration of nonmilitary service was false, illegal or a
crime as a matter of law. (
nonmilitary service, Merritt averred in both her supporting and reply
anti-SLAPP declarations that she was never notified by plaintiffs that
Villanueva was a servicemember or on active duty, and she believed neither he
nor Balverde were servicemembers.
Plaintiffs offered no contrary evidence.
According to Merritt, after she was advised by Balverde that Villanueva
was a servicemember, she cancelled execution of the writ of possession. Only Balverde, who was not shown to be a
servicemember, was named as a defendant in the second unlawful detainer
action. Indeed, the evidence submitted
by plaintiffs in opposition to Merritt's anti-SLAPP motion—Merritt's May 2011
declaration responding to Balverde's motion to vacate the October 2009
judgment—confirms that Merritt only named Balverde in that action because she
believed Balverde was the sole occupant of the Arroyo property and she was the
only person who had claimed a right to possess it by filing a section 1174.25
prejudgment claim of right to possession.
Merritt averred that though Balverde had advised her she was Villanueva's
attorney in fact under a military general power of attorney and that she was
therefore Villanueva's "legal representative" within the meaning of
the SCRA (50 U.S.C.A. Appen. § 519), Balverde had not asserted a
possessory interest, or any claims or defenses, on Villanueva's behalf. Plaintiffs provide no legal authorities
suggesting Villanueva should have been named and sued in that action as a
matter of law. Indeed, only a tenant in
subtenant if there is one, are necessary parties defendant in an unlawful
detainer action. (§ 1164;
1350.)
Nor does
the authority plaintiffs cite on appeal, Arrieta
v. Mahon (1982) 31 Cal.3d 381, compel such a conclusion. Arrieta involved claims for
declaratory and injunctive relief challenging a Los Angeles County Marshal
policy to evict all
occupants of
383.) The California Supreme court held
that "the eviction of any adults not named in the writ who claim a right
to possession of the disputed premises that arose before the unlawful detainer
action was commenced, violated the rights of such individuals to procedural due
process under the Fourteenth Amendment of the United States Constitution and
article I, section 7, subdivision (a) of the California
Constitution." (Arrieta, at pp. 383-384.) Thereafter, the California
legislature codified Arrieta to
provide a statutory procedure for an occupant not named in a judgment for
possession to present a claim of a right to possession. (See §§ 415.46, 1174.25, 1174.3, subd. (b);
(2000) 78 Cal.App.4th 1048, 1054; Cardenas
v. Noren, supra,
[purpose of claim of right to possession is to put the landlord on notice, make
the claimant a party, and to constitute a general appearance for proceeding
with the unlawful detainer action].) It
was for Villanueva, or Balverde on Villanueva's behalf, to present a claim of
right to possession to a levying officer if Villanueva sought to claim a right
superior to Deutsche Bank's and have a court determine the validity of that
claim. (Cardenas, at pp. 1349-1350 [because appellant could have invoked
the statutory procedure under section 1174.3 before he was evicted, he was not
entitled to a writ of mandate compelling the sheriff to reinstate him as a
tenant].)
Rather,
plaintiffs' allegations against Merritt stem from, and the gravamen of their
lawsuit is, Merritt's filing of fraudulent or perjured documents in connection
with the unlawful detainer proceedings.
In Rusheen, the plaintiff sued
an attorney, Cohen, for abuse of process, alleging Cohen had submitted a
perjurious declaration in connection with an earlier default judgment that
ultimately was ordered vacated by the Court of Appeal. (Rusheen,
supra, 37 Cal.4th at pp.
1053-1054.) In the superior court, Cohen
succeeded on his ensuing anti-SLAPP motion brought on grounds the abuse of
process claim was barred by the litigation privilege, but the Court of Appeal
reversed, holding that while the filing of the perjured declaration was
absolutely privileged, the gravamen of the action was " 'a conspiracy to
enforce a judgment obtained through the use of perjured declarations of
service,' which 'culminated in the noncommunicative conduct of enforcing the
judgment.' " (Id. at p. 1059.)
The
California Supreme Court took up the issue and disagreed with the appellate
court's conclusion. It observed that the
Court of Appeal had not identified any alleged wrongful conduct by Cohen other
than simply filing perjured declarations and the enforcement of a judgment was
simply an extension of the judicial process: "the object of any civil action
for damages." (Rusheen, supra, 37
Cal.4th at p. 1062.) According to the
court, "On close
of the [plaintiff's
abuse of process] action was not
but the procurement
of the judgment
based on the
use of allegedly
perjured declarations
communications '(1)
or quasi-judicial
proceedings; (2)
other participants
(3) to achieve
the objects of
the litigation; and (
logical relation
. . . , the litigation
the declarations
torts arising from
the privileged declarations. . . .
[A]s Cohen
party may
for submitting false
testimony or evidence
in the course
of judicial proceedings
which are used
to obtain a
judgment, the party
should likewise be
immune from abuse
of process claims
for subsequent acts
necessary to enforce
it. Otherwise, application
privilege would be
[undermined]. Thus, where
the complaint is
a privileged communication
(i.e., allegedly
privilege extends
noncommunicative acts (
Here,
plaintiffs' claim of the asserted illegal nature of Merritt's filing of false
declarations does not warrant a conclusion that those actions fall outside of
the anti-SLAPP law. Hence, the burden
shifted to plaintiffs to demonstrate a probability of prevailing on the merits
of their causes of action.
C.
Plaintiffs
maintain they met their burden under the second prong of the anti-SLAPP
law. Their briefing is directed solely
to the cause of action under the SCRA; they maintain they demonstrated a
probability of prevailing on the merits on that cause of action. Specifically, plaintiffs argue Merritt
violated section 521 of the SCRA by signing the declaration of nonmilitary
status in the second unlawful detainer action, and that the Civil Code section
47, subdivision (b) litigation privilege does not protect her behavior because
it was akin to the unethical, blatantly false, statements concerning issuance
of a bench warrant found to be possibly criminal and unprotected in
206 Cal.App.3d 1513 (Carney), or the
sending of a erroneous prelitigation demand letter as in Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140.
We are not
persuaded. Plaintiff's SCRA cause of
action against Merritt, which is based on Merritt's filing of a Judicial
Council form pleading declaration for purposes of obtaining an unlawful
detainer default judgment, is barred by the litigation privilege. "For well over a century, communications
with 'some relation' to judicial proceedings have been absolutely immune from
tort liability by the privilege codified as [Civil Code] section 47[,
subdivision (b)]." (Rubin v.
Green (1993) 4 Cal.4th
1187, 1193.) To invoke the privilege,
the party claiming it must show that the communication at issue was "(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 [it has] some connection or logical relation to the
action." (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)
Plaintiffs'
cited authority, Carney, relied on an
"interest of justice" requirement set forth in Kinnamon v. Straitman & Snyder (1977) 66 Cal.App.3d 893 (
the California Supreme Court in Silberg
v. Anderson, supra, 50 Cal.3d at
p. 219. Thus, Carney's holding is no longer good law. (See Kashian
v. Harriman (2001) 98 Cal.App.4th 892, 917-920 [explaining
follow Carney's analysis, which
assessed whether the law firm's statements to an elderly judgment debtor were
made "to serve the purpose of litigation . . . ." (Carney,
at p. 1522.) And Nguyen v. Proton Technology Corp., supra, 69 Cal.App.4th 140, does not support plaintiffs'
position. That case involved an
employer's prelitigation demand letter accusing a former employee of committing
acts of unfair competition, and also erroneously mischaracterizing the
employee's criminal reco
| Description | Plaintiffs and appellants Jun Villanueva and Sharon Balverde sued defendants and respondents Cyprexx Services, LLC (Cyprexx) and attorney Tyneia Merritt after Cyprexx auctioned Villanueva's personal belongings following the nonjudicial foreclosure sale of his residence. The trial court sustained without leave to amend the demurrer of Cyprexx and granted defendant Merritt's special motion to strike the complaint as a strategic lawsuit against public participation (Code Civ. Proc.,[1] § 425.16, commonly known as the anti-SLAPP statute). Plaintiffs appeal from the ensuing judgments in defendants' favor. They contend their complaint states causes of action for wrongful eviction, conversion, violation of the Servicemembers Civil Relief Act (SCRA) (50 U.S.C. Appen. § 501, et seq.), replevin or claim and delivery, and unjust enrichment, and the trial court should have granted them leave to amend. They further contend the court erred in granting Merritt's anti-SLAPP motion because Merritt did not engage in protected speech, and they demonstrated a likelihood of prevailing on their SCRA cause of action. They argue the court should have granted them leave to amend to state a malicious prosecution cause of action against Merritt. We affirm the judgments. |
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