Filed 5/17/18 Shafer v. Hasso CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



EVELYN SHAFER,

Plaintiff and Respondent,

v.

DANIEL HASSO,

Defendant and Appellant.


E066750

(Super.Ct.No. CIVDS1607319)

OPINION


APPEAL from the Superior Court of San Bernardino County. Keith D. Davis, Judge. Affirmed.
Law Offices of Michael Creamer and Michael Creamer for Defendant and Appellant.
Law Offices of Mark Henry Shafron and Mark Henry Shafron for Plaintiff and Respondent.
Defendant and appellant Daniel Hasso appeals an order denying his special motion to strike. (Code Civ. Proc., § 425.16.) Hasso contends that the current action for declaratory relief filed by plaintiff and respondent Evelyn Shafer arises from his prior exercise of his right to petition, within the meaning of section 425.16, subdivision (e), and is therefore a so-called SLAPP suit.
We will affirm the judgment.
BACKGROUND
On November 22, 2013, Hasso obtained a judgment against Jamal Dawood and Capital Finance, Inc., in Orange County Superior Court case No. 30-2009-00124141-CU-FR-CJC. As of January 22, 2016, the balance owed on that judgment was $360,126.03. On November 6, 2013, Hasso filed a complaint against Dawood, Firestone Finance Corporation, and Capital Finance, Inc., in San Bernardino County Superior Court case No. CIVDS 1313538 (Hasso v. Dawood, Firestone Finance Corp., et al. (Firestone)), alleging that he was a judgment creditor by virtue of the jury verdict in the Orange County action, and that neither defendant had paid any amount toward satisfying his claim. He alleged that the defendants had fraudulently conveyed a parcel of real property, identified as San Bernardino County Assessor’s Parcel No. 0232-021-64-0-000 and described as “Parcel 2 of Parcel Map 4690, in the County of San Bernardino, as per map recorded in book 56, page 23, of parcel maps of San Bernardino County,” with the intent to defraud creditors, including himself. He alleged that Firestone Finance Corporation (Firestone), to which Dawood conveyed the property, is a sham corporation formed by Dawood for the sole purpose of defrauding his creditors and that it had no funds of its own with which to purchase the property. In his prayer, he sought monetary damages and other unspecified relief “as the Court may deem proper.” In the body of his complaint, he also stated that he sought a determination that the assignment of the note and deed of trust to Firestone was fraudulent, so that creditors of Dawood and/or Capital Finance, Inc., could execute against the note, and specifically that he, as a “pre-existing creditor,” could do so.
On January 22, 2016, Hasso obtained a default judgment in the San Bernardino County action. The judgment included the finding that Dawood acted with fraudulent intent in forming Firestone and that the assignment of the note and deed of trust to Firestone was fraudulent and intended to “delay, hinder, or defraud” judgment creditor Hasso. The trial court also found that Hasso recorded a lis pendens on November 6, 2013. The court declared that “all instruments which are not consistent with recovery or title and/or collection in favor of Daniel Hasso against the real property are void and/or voidable if they have been recorded subsequent to the recordation of the notice of lis pendens in this action.” The court found that a deed of trust recorded on November 14, 2013, as San Bernardino Instrument No. 2013-0487113, is void or voidable as to Hasso. The judgment reflected those findings and provided that the assignment to Firestone is void as to Hasso and that all instruments affecting title to the property are void as to Hasso if the instrument was executed by Firestone, relied upon a prior transfer or other instrument that was executed by Firestone, or was recorded after the recordation of Hasso’s lis pendens.
On May 11, 2016, Shafer filed the current action for declaratory relief against Hasso, First Arrow Road, LLC, and other unnamed defendants. She alleged that on November 6, 2013, she acquired by assignment and recorded a deed of trust, San Bernardino Instrument No. 2013-0478741. She alleged that she acquired title to the property that is the subject of Hasso’s complaint on November 14, 2013, recorded as San Bernardino Instrument No. 2013-0487113. Shafer alleged that on November 6, 2013, “shortly after” she acquired her interest in the property, Hasso filed his lawsuit in Firestone, supra, Super. Ct. San Bernardino County No. CIVDS 1313538, and that he had later obtained the default judgment in that case. Shafer alleged that based on that judgment, Hasso had asserted that the assignment of the deed of trust to her, as alleged in her complaint, and all subsequent transactions concerning the property, are void. She contended that the default judgment is void as to her because she was not a named defendant in Hasso’s lawsuit, and that the default judgment was void with respect to the equitable relief it granted because Hasso’s complaint sought only monetary relief. She alleged that a justiciable controversy exists as to whether the default judgment is binding on her and as to whether the default judgment was void for the reasons she had stated.
On July 12, 2016, Hasso filed a special motion to strike the complaint. He asserted that the complaint’s allegations are based upon his protected conduct, i.e., his exercise of the constitutional right of petition, and that the complaint is an “impermissible collateral attack” on the default judgment in Firestone, supra, Super. Ct. San Bernardino County No. CIVDS 1313538. Shafer opposed the motion. After argument, the trial court denied the motion.
Hasso filed a timely notice of appeal.
LEGAL ANALYSIS
THE TRIAL COURT PROPERLY DENIED THE ANTI-SLAPP MOTION
Standard of Review.
An order denying a special motion to strike, or anti-SLAPP motion, is immediately appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) Our review is de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
Overview of Section 425.16.
Section 425.16 provides, inter alia, that “[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 Constitution or the 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.” (§ 425.16, subd. (b)(1).) “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Id., subd. (e).)
Section 425.16 posits a two-step process for determining whether an action is a SLAPP. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity. (§ 425.16, subd. (b)(1).)” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76 (City of Cotati).) “‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e) . . . .’” (Id. at p. 78.) “If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Id. at p. 76.) If the defendant fails to meet the threshold burden of demonstrating that the action arose from the defendant’s protected speech or petitioning, the motion fails, and there is no need to address the second prong. (Id. at pp. 76, 80-81.)
 
Plaintiff’s Declaratory Relief Action Does Not Arise from Defendant’s Protected Petitioning Activity.
Hasso states that the trial court found that Shafer’s declaratory relief action was “based on” Hasso’s petitioning activity in Firestone, supra, Super. Ct. San Bernardino County No. CIVDS 1313538, but found that section 425.16 nevertheless does not apply. He argues that the trial court erroneously determined that the first prong of the statute “cannot be satisfied by simply establishing that the action arose from protected activity in the form of the right of petition.” He contends that this “substantially erode[s] the protection of the anti-SLAPP statute” and that it “eviscerates the two-pronged test” provided for in section 425.16.
We do not read the trial court’s ruling as Hasso does. When the court referred to the declaratory relief action as being “based on” Hasso’s earlier lawsuit, the court was summarizing Hasso’s argument, not issuing its ruling. What the trial court said in ruling on the motion from the bench is as follows: “While I appreciate everyone’s arguments, I am going to adopt my tentative for the reasons I’ve stated and find that the motion ought to be denied in its entirety. Because, frankly, I don’t think this is the sort of protected activity which is contemplated by the anti-SLAPP statute. I agree that plaintiff in this matter [i.e., Shafer] has a right to petition the court so as to seek judicial determination of her rights and duties with respect to this property.” We do not know what the trial court meant by “this is [not] the sort of protected activity” contemplated by section 425.16. It does not matter, however, because we do not review the trial court’s reasoning but only its ruling. If the trial court was correct on any theory, we will affirm the judgment, even if the trial court’s rationale was incorrect. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
We now turn to the merits of the issue. Hasso contends that Shafer’s declaratory relief action is a SLAPP suit because it was “entirely based on” his petitioning activity in Firestone, supra, Super. Ct. San Bernardino County No. CIVDS 1313538. He does not expand upon what he means by this, but it appears that he means that because Shafer’s action came after he obtained his judgment in Firestone and requests a declaration as to the effect of that judgment on her, it necessarily arises from his petitioning activity in Firestone. This is not the case. In the context of petitioning activity, it is not sufficient that the current lawsuit was filed after the defendant’s suit was filed, even if it is based on the same facts or transaction; the mere fact that an action follows or is in response to petitioning activity does not mean that the action arises from that activity, within the meaning of section 425.16. (City of Cotati, supra, 29 Cal.4th at pp. 76-77.) To interpret section 425.16 that way, the California Supreme Court has held, “would in effect render all cross-actions potential SLAPP’s.” (City of Cotati, at p. 77.) “Just as a cross-complaint often ‘arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges’ (Code Civ. Proc., § 426.10, subd. (c); see also id., § 428.10, subd. (b)(1)), so may a responsive but independent lawsuit arise from the same transaction or occurrence alleged in a preceding lawsuit, without necessarily arising from that earlier lawsuit itself. [Citation.]” (City of Cotati, at pp. 77-78.)
In order to “arise” from petitioning activity, the current complaint must allege injury from the defendant’s conduct in relation to the prior petitioning activity. (Navellier v. Sletten (2002) 29 Cal.4th 82, 90 (Navellier); Rusheen v. Cohen (2006) 37 Cal.4th 1048 (Rusheen).) In Navellier, for example, holding that current litigation fell “squarely within” section 425.16, the court explained:
“Examination of the relevant documents reveals that each of Sletten’s acts (or omissions) about which plaintiffs complain falls squarely within the plain language of the anti-SLAPP statute. In alleging fraud, as the dissent acknowledges, plaintiffs complain about Sletten’s alleged negotiation, execution, and repudiation of the Release. According to plaintiffs, the Release limited the types of claims that Sletten was permitted to file in the federal action, preserving only claims for contribution and indemnity. When moving to dismiss Sletten’s counterclaims under Federal Rules of Civil Procedure, rule 12(b)(6) (28 U.S.C.), plaintiffs relied on the Release. Sletten’s negotiation and execution of the Release, therefore, involved ‘statement[s] or writing[s] made in connection with an issue under consideration or review by a . . . judicial body’ (§ 425.16, subd. (e)(2)), i.e., the federal district court, and his arguments respecting the Release’s validity were ‘statement[s] or writing[s] made before a . . . judicial proceeding’ (id., subd. (e)(1)), i.e., the federal action.
“In alleging breach of contract, plaintiffs complain about Sletten’s having filed counterclaims in the federal action. Sletten, plaintiffs argue, ‘counterclaimed for damages to recover money for the very claim he had agreed to release a year earlier’ and ‘was sued for that act.’ A claim for relief filed in federal district court indisputably is a ‘statement or writing made before a . . . judicial proceeding’ (§ 425.16, subd. (e)(1)).
“The record thus establishes, contrary to the dissent, that this action is based on acts Sletten took ‘in furtherance of [his] right of petition or free speech under the United States or California Constitution in connection with a public issue’ (§ 425.16, subd. (b)(1)), as that phrase is defined in the anti-SLAPP statute (see id., subd. (e)). The constitutional right of petition encompasses ‘“‘the basic act of filing litigation.’”’ [Citation.] Sletten is being sued because of the affirmative counterclaims he filed in federal court. In fact, but for the federal lawsuit and Sletten’s alleged actions taken in connection with that litigation, plaintiffs’ present claims would have no basis. This action therefore falls squarely within the ambit of the anti-SLAPP statute’s ‘arising from’ prong. (§ 425.16, subd. (b)(1).)” (Navellier, supra, 29 Cal.4th at p. 90, italics added.)
The court further distinguished Navellier from City of Cotati, supra, 29 Cal.4th 69: “The dissent confusedly argues that Navellier’s claim is not a SLAPP for the same reasons that the claim at issue in the companion case, Cotati, supra, 29 Cal.4th 69, is not a SLAPP (dis. opn., post, at pp. 97-100), but there is no analogy. To the extent Navellier’s fraud claim in this action ‘arose . . . from the alleged deception that occurred in July 1997, when Sletten signed the release’ (id. at p. 69), it is based on a statement or writing made in connection with issues under consideration or review by a judicial body—i.e., the issues under consideration in Navellier’s federal action. (See ibid. [noting the release was ‘designed to forestall further litigation’ including counterclaims by Sletten in ‘litigation pending at the time’]; see also maj. opn., ante, at pp. 89-90.) Such statements and writings are expressly protected by the anti-SLAPP statute. (§ 425.16, subd. (e)(2).) The claim at issue in Cotati, in contrast, arose from a controversy between the parties respecting mobile home park rent control, not from any statement or writing in connection with judicial proceedings. (See Cotati, supra, at pp. 79-81.) [¶] Contrary to the dissent, moreover, Navellier in this action seeks more than ‘“a declaration of [Navellier]’s rights as to the controversy raised [by Navellier] in the [federal] suit”’ (dis. opn., post, at p. 100); Navellier seeks damages for Sletten’s allegedly having raised additional, independent claims in the earlier suit. Finally, Navellier’s complaint, unlike the City of Cotati’s complaint in Cotati and contrary to the dissent’s assertion, expressly refers to activity protected under the anti-SLAPP statute: Sletten’s negotiation and signing of the release and his pleading of counterclaims in the federal action.” (Navellier, supra, 29 Cal.4th at p. 90, fn. 6.)
In Rusheen, supra, 37 Cal.4th 1048, the plaintiff sued the defendant, an attorney, for abuse of process in connection with prior litigation between the plaintiff and the defendant’s client in that prior litigation. The court held that the attorney’s actions were protected by the litigation privilege (Civ. Code, § 47), in that the gravamen of the action was the attorney’s procurement of the underlying judgment through privileged communicative acts and related noncommunicative acts. Accordingly, it held, the trial court properly struck the complaint pursuant to section 425.16. (Rusheen, at pp. 1055-1056, 1061-1066.)
Thus, both Navellier, supra, 29 Cal.4th 82, and Rusheen, supra, 37 Cal.4th 1048, make it clear that section 425.16 does not apply to the mere filing of a subsequent lawsuit that has some relationship to prior litigation; rather, it applies only where the subsequent suit is based upon the defendant’s words or conduct in connection with the prior litigation.
Here, in contrast, Shafer’s complaint is premised on the effect of the prior judgment, not on the fact that Hasso filed the lawsuit or on any statement or conduct of his in connection with the prior lawsuit. Rather, it is an independent action that is merely responsive to Hasso’s prior suit. (City of Cotati, supra, 29 Cal.4th at p. 76.) Accordingly, it does not “arise from” Hasso’s petitioning activity.
Hasso also contends that Shafer’s suit is “derivative litigation,” and that the anti-SLAPP statute was “intended to protect from derivative litigation in the form of an action
for declaratory relief.” Hasso does not explain what he means by “derivative litigation,” and the sole case he cites, South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, does not use that term or hold that an action for declaratory relief is necessarily a SLAPP suit. He does not explain how that opinion is pertinent to this appeal. An appellant’s contentions must be supported by both meaningful argument and citation to pertinent authority. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.) A summary argument which cites only general legal principles without relating them to the specific facts is not sufficient. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) Here, although Hasso cites pertinent authorities, he does not develop his argument in any meaningful way and does not explain how the legal principles apply to his case. We deem the argument insufficiently developed to merit review. (Ibid.)
The remainder of Hasso’s contentions relate to the second prong of section 425.16. These contentions are moot because we have concluded that the trial court properly denied the anti-SLAPP motion for failure to meet the first prong. (City of Cotati, supra, 29 Cal.4th at pp. 80-81.)
DISPOSITION
The judgment is affirmed. Plaintiff and respondent Evelyn Shafer is awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:



MILLER
J.



CODRINGTON
J.