Sood v. CM International Trading

Sood v. CM International Trading




Filed 3/22/06 Sood v. CM International Trading CA2/7


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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









SECOND APPELLATE DISTRICT








DIVISION SEVEN











SHASHI SOOD,


Cross-complainant and Respondent,


v.


CM INTERNATIONAL TRADING CORP.,


Cross-defendant and Appellant.


B183957


(Los Angeles County


Super. Ct. No. KC044298)


APPEAL from an order of the Superior Court of Los Angeles County, Peter J. Meeka, Judge. Reversed and remanded.


Mitchell Reed Sussman for Cross-defendant and Appellant.


Demler, Armstrong & Rowland, Raymond H. Goettsch and Mary H. Kim, for Cross-complainant and Respondent.


_


CM International Trading Corporation (CMI) appeals from the trial court’s order denying its special motion to strike under Code of Civil Procedure section 425.16[1] the cross-complaint filed against it by Shashi Sood. Because the trial court erred both by finding the motion untimely and, in the alternative, by denying the motion on its merits on the ground Sood had established a probability of prevailing on his abuse of process claim, we reverse and remand the matter to the trial court with directions to enter a new order granting the motion and awarding CMI its attorney fees and costs.


FACTUAL AND PROCEDURAL BACKGROUND


1. Sood’s Action Against CMI and Others for Fraud and Breach of Contract


On October 25, 2000 Sood filed an action against CMI and a number of additional defendants in part for fraud and breach of contract alleging he had been unfairly terminated from employment without receiving all compensation due to him. According to the second amended judgment entered after a jury trial in the action, the trial court (Judge Robert O’Brien) granted a directed verdict on Sood’s complaint in favor of CMI; the jury returned a verdict in favor of Sood, finding some of the remaining defendants had breached an oral contract to pay Sood $300,000 in deferred compensation;[2] and the court ordered those defendants to pay Sood prejudgment interest, costs and attorney fees and Sood to pay CMI $5,000 in costs and $5,000 in attorney fees. Sood appealed from the judgment, contending the trial court had erred by directing a verdict for CMI, and from the court’s posttrial order awarding attorney fees to CMI.[3]


While Sood’s appeals were pending, CMI caused a writ of execution to be issued and levied on an account Sood maintained at Wells Fargo Bank to collect the costs and attorney-fees awards in its favor, a total of $10,000 plus interest. After Sood learned of the levy on his bank account, his counsel sent a letter to CMI’s counsel, dated November 17, 2003, demanding withdrawal of the writ and accompanying notice of levy on the ground Sood’s appeals automatically stayed enforcement of the costs and attorney-fees awards in CMI’s favor and CMI was thus violating the automatic stay. The same day, Trevor Bottomly from the office of CMI’s counsel sent a letter to the sheriff confirming a request to withdraw the levy on Sood’s bank account. Two days later, on November 19, 2003, Sood’s counsel sent another letter to CMI’s counsel informing him the levy had not been withdrawn because the letter to the sheriff from his office had been signed by a secretary, not by him personally, and demanding he forward a proper notice of withdrawal to the sheriff. Later that day, CMI’s counsel sent a new letter, which he personally signed, to the sheriff confirming his request to withdraw the levy on Sood’s bank account. On November 24, 2003 Sood’s counsel sent a letter to Wells Fargo Bank, confirming it had received notice from the sheriff’s office to release Sood’s funds and the release and redeposit of funds would be completed by the next morning.


On February 9, 2004 Division Five of this court affirmed the directed verdict and attorney-fees award in CMI’s favor.[4] (Sood v. Mittal (Feb. 9, 2004, B164600) [nonpub. opn.].) After Division Five’s opinion became final, Sood paid CMI in full the costs and attorney-fees awards, plus interest.


2. CMI’s Action Against Sood for Malicious Prosecution and Abuse of Process


On June 4, 2004 CMI filed a complaint against Sood for malicious prosecution and abuse of process, alleging Sood had filed his fraud and breach of contract action against it without a good faith belief that he had been employed by CMI or that CMI was indebted to him and, in doing so, had misused the legal process “for the sole and ulterior purpose of driving a wedge between [CMI’s] president, Gordhan Patel, and his long time friend Chander Mittal. Additionally, [Sood] sought to punish CMI and its president . . . for allegedly advising Chander Mittal to fire [him.]”


3. Sood’s Separate Action Against CMI for Abuse of Process


Notwithstanding the pendency of CMI’s recently filed action, on October 12, 2004 Sood filed a separate lawsuit against CMI, alleging one cause of action for abuse of process. According to Sood’s complaint, CMI abused the legal process by obtaining the writ of execution to collect on the costs and attorney-fees awards in its favor and causing the writ to be levied on Sood’s bank account while enforcement of those awards was automatically stayed by his pending appeals. Sood alleged CMI had acted with the ulterior motive to “embarrass and harass Sood and to pressure and persuade Sood to settle with the other defendants in the underlying [fraud and breach of contract] action for much less than the amount of Sood’s judgment.”


CMI demurred to the complaint, arguing Sood was required to file it as a compulsory cross-complaint in its action against him for malicious prosecution and abuse of process. The trial court (Judge Rita J. Miller) sustained CMI’s demurrer without leave to amend.


4. Sood’s Cross-complaint Against CMI in Its Action for Malicious Prosecution and Abuse of Process


Sood then moved in the instant action to file a cross-complaint against CMI for abuse of process. The trial court granted his motion, deeming the complaint for abuse of process he had filed in his separate action against CMI the cross-complaint in this action.


5. CMI’s Special Motion to Strike, Sood’s Opposition and the Trial Court’s Ruling


Shortly after answering Sood’s cross-complaint, CMI filed a special motion to strike the cross-complaint as a SLAPP (strategic lawsuit against public participation) suit under section 425.16, contending its attempt to collect on the costs and attorney-fees awards constituted protected activity under section 425.16 and Sood could not demonstrate a probability he would prevail on the merits of his abuse of process cause of action.[5] Sood opposed the motion, asserting it was untimely and, in any event, he could establish the elements of an abuse of process claim because the intentional levying of a writ of execution while enforcement of the costs and attorney-fees awards was stayed pending appeal was improper and accomplished for the purpose of interfering with his efforts to collect on the judgment in his favor and forcing him to accept an inferior settlement.


The trial court denied the motion, initially concluding it was untimely because it had been filed more than 60 days after CMI had been served with the complaint in Sood’s separate action against CMI. The court then, in the alternative, denied the motion on its merits on the ground Sood had established a probability of prevailing on his abuse of process claim based on evidence CMI’s action in levying a writ on his bank account was intended to harass him and was not communicative conduct within the scope of Civil Code section 47, subdivision (b)’s litigation privilege, citing Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009 (Drum).[6] The court also found CMI’s special motion to strike was frivolous and solely intended to cause delay and awarded Sood $3,000 in attorney fees and costs under section 425.16, subdivision (c). CMI filed a timely notice of appeal. (§§ 425.16, subd. (j), 904.1, subd. (a)(13).)


CONTENTIONS


CMI contends the trial court erred by finding (1) its special motion to strike was untimely because it was filed more than 60 days after Sood had served the complaint in his separate action against it for abuse of process; (2) Sood demonstrated a probability he would prevail on his abuse of process claim and such claim is not barred by the litigation privilege in Civil Code section 47, subdivision (b); and (3) Sood was entitled to attorney fees and costs pursuant to section 425.16, subdivision (c), because CMI’s anti-SLAPP motion was frivolous and solely intended to cause unnecessary delay.


DISCUSSION


1. Section 425.16: The Anti-SLAPP Statute


Section 425.16 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.” (§ 425.16, subd. (b)(1).)[7] In ruling on a defendant’s motion under section 425.16, the trial court engages in a two-step process. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).)[[8]] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon Enterprises).)[9] “‘The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue. [Citation.]’ [Citation.]” (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928 (Kajima).)


We review the trial court’s rulings on an anti-SLAPP motion independently under a de novo standard of review. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645; Kajima, supra, 95 Cal.App.4th at p. 929.)


2. The Trial Court Erred by Finding CMI’s Special Motion to Strike Untimely


A special motion to strike “may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” (§ 425.16, subd. (f).) The 60-day filing requirement runs from the date of service of the challenged pleading, be it an original or an amended complaint or cross-complaint.[10] (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 283 [“The 60-day period commences with the service of the most recent complaint or amended complaint in the action”]; Lam v. Ngo (2001) 91 Cal.App.4th 832, 840-842 [finding purpose of § 425.16 and Legislature’s express intent that the statute be “construed broadly” mandate that anti-SLAPP motions directed against an amended complaint be considered even though more than 60 days has elapsed from service of original complaint]; see DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 564-565 [considering merits of anti-SLAPP motion directed to first amended complaint].)


In this case the complaint Sood had improperly filed and served in his separate action against CMI was deemed to constitute the cross-complaint on March 4, 2005. CMI’s anti-SLAPP motion was filed 52 days later on April 25, 2005. Nevertheless, Sood contends, and the trial court agreed, that CMI’s anti-SLAPP motion was untimely because it was filed more than 60 days after Sood had served the complaint in his separate action on CMI. Nothing in section 425.16, subdivision (f), or the cases interpreting it, however, suggests the timeliness of an anti-SLAPP motion should be determined based on the service of a complaint in an entirely separate action. To the contrary, the 60-day period for filing an anti-SLAPP motion expressly starts to run from “service of the most recent complaint or amended complaint in the action.” (Olsen v. Harbison, supra, 134 Cal.App.4th at p. 283, italics added.) The fact CMI happened to have prior possession of a copy of the pleading that ultimately was deemed the cross-complaint in the instant action does not change the statutory time period for filing an anti-SLAPP motion.


Sood’s reliance on this court’s decision in Morin v. Rosenthal (2004) 122 Cal.App.4th 673 (Morin) is misplaced. In Morin, after the plaintiff had filed his complaint, defendants removed the action to bankruptcy court and timely filed special motions to strike the complaint as a SLAPP suit. (Id. at p. 677.) The bankruptcy court remanded the action and denied the anti-SLAPP motions without prejudice, permitting defendants to refile them in state court. (Ibid.) Following the remand, more than 90 days elapsed before defendants refiled their anti-SLAPP motions, during which time they successfully moved to transfer the case from the west district to the central district of the Los Angeles Superior Court and to disqualify the central district judge initially assigned to the case. (Ibid.) Defendants finally refiled their anti-SLAPP motions five days after the case had been reassigned to a new central district judge. (Ibid.) We found the refiled motions untimely because they had been filed more than 60 days after the plaintiff had given the defendant notice of the remand. We explained, “Courts occasionally have to massage statutory time limits for filings in order to accommodate unusual circumstances. The trial court’s ruling starting the 60-day period after remand from the federal court strikes us as a reasonable accommodation.” (Id. at p. 679, fn. omitted.)


The issue in Morin was whether the transfer of a case after service of the complaint ‑‑ from state court to federal court and back and then from one district of the superior court to another ‑‑ restarted the 60-day period for filing an anti-SLAPP motion. (Morin, supra, 122 Cal.App.4th at pp. 678-679.) Nothing in Morin suggests the 60-day period begins prior to the date of service of the pleading actually being challenged. Indeed, the defendants in Morin were given a new opportunity to file anti-SLAPP motions after the matter had been remanded to state court, despite the fact they had been served with the complaint far more than 60 days earlier.


To be sure, CMI could have filed a special motion to strike Sood’s improperly filed, separate abuse of process lawsuit either alone or in combination with its demurrer. But it was well within its rights simply to demur to the complaint on the ground it should have been filed, if at all, as a compulsory cross-complaint in the instant action. Having successfully pursued that course of action, CMI was also entitled to move to strike Sood’s newly filed cross-complaint ‑‑ the operative pleading in this action ‑‑ under section 425.16 within 60 days of the date it was served or deemed to have been served. The trial court’s conclusion to the contrary was error.


3. The Trial Court Erred by Denying CMI’s Special Motion to Strike on Its Merits


a. The abuse of process cause of action falls within the purview of the anti-SLAPP statute


The tort of abuse of process is the improper use of the machinery of the legal system for an ulterior motive. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1014.) The tort’s essence is “‘misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice. . . .’ [Citation.]” (Rusheen v. Cohen (Feb. 23, 2006, S123203) _ Cal.4th _, _ (Rusheen); see also ComputerXpress, at p. 1014 [“Because the purpose of the tort [of abuse of process] is ‘to preserve the integrity of the court,’ it ‘requires a misuse of a judicial process . . . .’ [Citations.]”].) The inherent nature of the tort, therefore, involves acts in the context of a judicial proceeding in furtherance of a person’s right to petition.[11] As a result, an abuse of process cause of action falls within the purview of the anti-SLAPP statute. (§ 425.16, subds. (e)(1) & (e)(2); see, e.g., Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570 [cause of action for abuse of process subject to the anti-SLAPP statute because it arises from the exercise of the right to petition]; ComputerXpress, at p. 1014 [abuse of process claim based on filing of complaint with Securities and Exchange Commission arises from a statement before an official proceeding under § 425.16, subd. (e)(1)]; see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 736, fn. 6 [noting Legislature was aware in adopting and amending anti-SLAPP statute that abuse of process claims might be SLAPP suits].) Accordingly, Sood’s abuse of process cause of action based on allegations CMI misused the legal process in its efforts to collect on the costs and attorney-fees awards to CMI in Sood’s fraud and breach of contract action arises from activity protected under the anti-SLAPP statute.


b. Sood did not establish a probability of prevailing on his abuse of process claim


To establish a cause of action for abuse of process, the plaintiff must demonstrate both a willful act in the use of process not proper in the regular conduct of the proceedings and an ulterior motive. (Rusheen v. Cohen, supra, _ Cal.4th at p. _; Siam v. Kizilbash, supra, 130 Cal.App.4th at p. 1579.) Sood did not establish a probability of prevailing on either element.


Sood contends, and the trial court found, he demonstrated a probability of prevailing on the willful-act element based on CMI’s actions causing a writ of execution to be levied on his bank account while enforcement of the costs and attorney-fees awards in its favor was automatically stayed pending appeal.[12] Sood likens the facts of this case to those in Drum, supra, 107 Cal.App.4th 1009, disapproved on another ground in Rusheen, supra, _ Cal.4th at p. _, in which Division Eight of this court held the plaintiff had established a probability of prevailing on the willful-act element of his abuse of process claim in response to the defendant’s anti-SLAPP motion.


In Drum an attorney sued a law firm for abuse of process based on actions the law firm had taken during its representation of a client in a prior legal malpractice action against the attorney. (Drum, supra, 107 Cal.App.4th at p. 1013.) The prior legal malpractice action had resulted in a sizable money judgment in favor of the law firm’s client. (Id. at p. 1014.) Because enforcement of the money judgment would not have been stayed absent the posting of an undertaking (§ 917.1, subd. (a)(1)), the attorney requested ‑‑ in the presence of the law firm ‑‑ a stay of enforcement of the judgment under section 918, subdivision (b), pending the filing of a notice of appeal to allow the attorney to file posttrial motions without yet having to post an undertaking.[13] (Drum, at p. 1014.) The trial court agreed, “‘We will stay the judgment pending filing of the notice of appeal and motion for new trial.’” (Ibid.) A minute order memorialized the trial court’s ruling. (Id. at p. 1019.) While the section 918, subdivision (b), stay was in effect, the law firm obtained a writ of execution from the superior court clerk and caused the sheriff to levy on the writ. (Id. at p. 1014.) Despite pleas from the attorney, the law firm refused to withdraw the writ maintaining, despite the trial court’s express ruling to the contrary, the stay had expired after the denial of the attorney’s new trial motion but before the time lapsed for filing a notice of appeal. (Id. at pp. 1014-1015.)


The attorney then sued the law firm for abuse of process. On the law firm’s special motion to strike the complaint as a SLAPP suit, Division Eight found the attorney had met his burden to establish a probability of prevailing on the willful-act element of his abuse of process claim: “[T]he act of levying on a writ of execution at a time when enforcement of the judgment had been stayed, the stay had been announced in open court in [the law firm’s] presence, and a minute order had memorialized the stay, established a prima facie case of the ‘willful act in the improper use of process’ element of the tort [of abuse of process].” (Drum, supra, 107 Cal.App.4th at p. 1019.)


Drum is distinguishable from this case in several significant respects. First, the law firm in Drum plainly knew enforcement of the judgment was stayed because it was present at the hearing when the trial court granted a stay for a specified time period, a ruling that was memorialized in a minute order. Here, in contrast, there was no court-ordered stay; the costs and attorney-fees awards in CMI’s favor were instead subject to statutory stays, a fact apparently not know to CMI or its counsel. While CMI’s counsel might have been remiss in not researching the issue before attempting to enforce the awards, no evidence suggests he willfully disregarded the automatic stay and improperly attempted to execute on them. Second, unlike the law firm in Drum, which refused to withdraw the writ of execution when reminded by the attorney the court-ordered stay was still in effect, after CMI’s counsel was informed that Sood’s counsel believed the automatic stay prevented enforcement of the awards, the writ of execution and notice of levy on Sood’s bank account were immediately withdrawn. The evidence, therefore, does not establish a probability Sood can prevail on the willful-act element.


Nor has Sood demonstrated a probability of prevailing on the ulterior-motive element of the abuse of process tort. Sood submitted a large volume of evidence regarding the relationship between CMI, its principals and the defendants who had been found liable to him in his underlying fraud and breach of contract action and who also had been named in a fraudulent conveyance case Sood was pursuing in which he alleged Mittal was shifting money among corporations he controlled to avoid paying the judgment. Soods asserts this evidence demonstrates CMI, in attempting to enforce the costs and attorney-fees awards in its favor, intended to prevent him from collecting his judgment and to harass him into accepting an inferior settlement.


Sood’s contention, however, is sheer speculation at best. Nothing in Sood’s evidence indicates how CMI’s attempted enforcement of costs and attorney-fees awards totaling $10,000, plus interest, might have hindered his ability to collect on the judgment in his favor.[14] Rather, the evidence demonstrates CMI, unaware of the automatic stay and without investigating its potential application, mistakenly attempted to collect on the awards in its favor and then affirmatively caused the writ of execution and accompanying notice of levy to be withdrawn once informed by Sood’s counsel that the pending appeals stayed enforcement of the awards. CMI’s act in immediately terminating its enforcement effort is inconsistent with Sood’s theory CMI purposefully caused the writ of execution to be levied on Sood’s bank account to force his hand with respect to collection of the judgment in his favor.


The fact the initial letter sent by CMI’s counsel to the sheriff was ineffective because it was signed by a secretary similarly does not establish a purposeful delay in abandoning the effort to execute on the costs and attorney-fees awards. Sood presented no evidence to suggest CMI’s counsel knew the initial letter would be ineffective; and a new letter was sent with the appropriate signature the same day counsel was notified the writ had not been withdrawn. Because only two days elapsed between CMI’s counsel’s first notice of Sood’s objection to execution on the costs and attorney-fees awards based on the automatic stay and the time the appropriate letter was sent to the sheriff to withdraw the writ, no inference can be made CMI acted with an ulterior motive to harass Sood and prevent him from collecting on the judgment in his favor.


Sood’s abuse of process claim against CMI lacks merit for the additional reason CMI’s alleged misconduct is absolutely protected by the litigation privilege in Civil Code section 47, subdivision (b), as CMI argued in support of its special motion to strike.[15] While this case was pending on appeal, the Supreme Court decided Rusheen, supra, _ Cal.4th at page _, disapproving Drum, supra, 107 Cal.App.4th 1009, upon which the trial court had relied, and expressly “agree[ing] with those cases that have applied the litigation privilege to limit the availability of the tort of abuse of process in the judgment enforcement context.” (See Brown v. Kennard (2001) 94 Cal.App.4th 40, 46-51 [demurrer properly sustained to abuse of process cause of action because judgment enforcement efforts taken through the judicial process of a writ of execution, including subsequent act of levying on the writ, protected by litigation privilege]; O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134 [demurrer properly sustained based on litigation privilege to abuse of process claim alleging defendants had acted wrongfully by levying on a bank account and filing an abstract of judgment to collect on a judgment for attorney fees].)[16] The Court concluded “the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct[.] . . . Stated another way, unless it is demonstrated that an independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies.” (Rusheen, at p. _.) Because in Rusheen the gravamen of the plaintiff’s abuse of process claim was the procurement of a judgment based on the use of allegedly perjured declarations of service, the litigation privilege extended to the necessarily related noncommunicative act of levying on the plaintiff’s property to enforce the judgment. (Id. at p. _.) As a result, the trial court had properly granted the defendant’s anti-SLAPP motion on the ground the plaintiff’s abuse of process claim was barred by the litigation privilege. (Id. at p. _.)


Here, the gravamen of Sood’s abuse of process claim was CMI’s use of the judicial process to obtain a writ of execution while enforcement of the costs and attorney-fees awards in its favor was automatically stayed by Sood’s pending appeals. The litigation privilege thus applies to bar Sood’s claim based on that communicative act and extends to the necessarily related noncommunicative act of levying on the writ. (Rusheen, supra, _ Cal.4th at p. _.) Accordingly, Sood cannot establish a probability of prevailing on his abuse of process claim.


4. CMI Is Entitled to Attorney Fees and Costs Incurred in the Trial Court and on Appeal


Section 425.16, subdivision (c), provides, “In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to section 128.5.” According to this statutory language, the award of attorney fees to the party bringing a successful motion to strike under section 425.16 and to a prevailing plaintiff when the motion is found to be frivolous or solely intended to cause unnecessary delay is “mandatory.” (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)


Because we reverse the trial court’s ruling denying CMI’s special motion to strike and find the motion should have been granted, the award of attorney fees and costs to Sood made on the ground the motion was frivolous and solely intended to cause unnecessary delay obviously must fall as well. In addition, CMI, as the prevailing party on its special motion to strike, is entitled to the mandatory award of attorney fees and costs, both those incurred in the trial court and on appeal, in an amount to be determined by the trial court. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1249; Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 287 [“The appellate courts have construed section 425.16, subdivision (c) to include an attorney fees award on appeal. [Citations.]”]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785 [“Since section 425.16, subdivision (c) provides for an award of attorney fees and costs to a prevailing defendant on a special motion to strike, and does not preclude recovery of appellate attorney fees by a prevailing defendant-respondent, those fees are recoverable”].)


DISPOSITION


The order denying CMI’s special motion to strike under section 425.16 and awarding Sood attorney fees and costs is reversed. The cause is remanded to the trial court with directions to enter a new order granting the motion and to conduct further proceedings to determine the amount of attorney fees and costs to be awarded to CMI as the prevailing party on the motion. CMI also is to recover its attorney fees and costs on appeal in an amount to be determined by the trial court.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


PERLUSS, P. J.


We concur:


JOHNSON, J.


ZELON, J.


Publication Courtesy of San Diego County Legal Resource Directory.


Analysis and review provided by El Cajon Apartment Manager Lawyers.


[1] Statutory references are to the Code of Civil Procedure unless otherwise indicated.


[2] On a cross-complaint for breach of a promissory note filed by CM Automotive Systems, Inc., the jury found against Sood and awarded CM Automotive Systems, Inc. $2,216.03 in damages.


[3] The defendants found liable to Sood also appealed, arguing the evidence was insufficient to support the award in Sood’s favor.


[4] Division Five also affirmed the jury verdict and award of prejudgment interest, costs and attorney fees in Sood’s favor.


[5] Prior to filing its special motion to strike, CMI demurred to the cross-complaint on the ground the abuse of process claim was barred by Civil Code section 47, subdivision (b)’s litigation privilege. The trial court overruled the demurrer, finding, according to the allegations in the cross-complaint, CMI’s action in levying a writ on Sood’s bank account in an attempt to collect the costs and attorney-fees awards in its favor while enforcement was automatically stayed on appeal constituted noncommunicative conduct outside the scope of the litigation privilege.


[6] The trial court ruled, “Sood has established probability of success on his cause of action for abuse of process. The evidence presented establishes an ulterior motive on the part of CMI by giving rise to the inference that CMI levied on Sood’s bank account to harass Sood, and to make it more difficult for Sood to defend his judgment against Mittal in the appellate proceeding and to pursue collection of his money judgment against Mittal. . . . Additionally, based upon [CMI’s counsel’s] years of experience and the letter sent to the Sheriffs Office, which should have been signed by [him] rather than his secretary, it is reasonable to infer that CMI purposefully delayed in canceling the writ and withdrawing the levy by sending a letter which counsel for CMI likely knew was not sufficient to cancel the levy at issue. . . . [¶] Furthermore, the evidence presented demonstrates that CMI committed a willful act in the use of process not proper in the regular conduct of the proceedings when it levied on Sood[’]s bank account during the period an automatic stay under Code of Civil Procedure section 916 was in effect. . . . Furthermore, the CMI[’]s conduct of levying on Sood[’]s bank account is not privileged.”


[7] Under the statute an “‘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; (4) or 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.” (§ 425.16, subd. (e).)


[8] “‘In terms of the so-called threshold issue, the moving defendant’s burden is to show the challenged cause of action “arises” from protected activity. [Citations.]’” (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.) “[T]he statutory phrase ‘cause of action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause [of action] fits one of the categories spelled out in section 425.16, subdivision (e) . . . .’ [Citations.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)


[9] Once the defendant establishes the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a “probability” of prevailing on the claim. (Equilon Enterprises, supra, 29 Cal.4th at p. 67.) “[T]he 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.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821; see also Zamos. v. Stroud (2004) 32 Cal.4th 958, 965 [“the issue is whether plaintiffs presented evidence in opposition to defendants’ anti-SLAPP motion that, if believed by the trier of fact, was sufficient to support a judgment in plaintiffs’ favor”].)


[10] For purposes of the anti-SLAPP statute, a cross-complaint is treated the same as a complaint. (§ 425.16, subd. (h).)


[11] A cause of action arising out of the defendant’s “litigation activity” directly implicates the right to petition and thus is subject to a special motion to strike. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89; Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 237-238.)


[12] Although the record on appeal does not contain copies of Judge O’Brien’s orders awarding CMI costs and attorney fees in Sood’s underlying fraud and breach of contract action, it appears Sood is correct that enforcement of those awards was automatically stayed pending appeal. CMI was awarded costs as the prevailing party, which included an award of statutory attorney fees under the Labor Code. (See Sood v. Mittal, supra, B164600.) Enforcement of an award of costs to the prevailing party in an action pursuant to section 1021 is automatically stayed pending an appeal from the judgment. (§ 917.1, subd. (d) [“no undertaking shall be required pursuant to this section solely for costs awarded under Chapter 6 (commencing with Section 1021) of Title 14”]; Vadas v. Sosnowski (1989) 210 Cal.App.3d 471, 475 [“judgment for costs alone is automatically stayed without bond pending appeal”].) Likewise, enforcement of an award of attorney fees pursuant to contract, statute or law is automatically stayed pending appeal because such fees are considered costs. (§ 1033.5, subds. (a)(10) & (c)(5); see Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1430.)


[13] Section 918, subdivision (b), allows the trial court to temporarily stay enforcement of a judgment or order that would be stayed on appeal only by the posting of an undertaking until 10 days beyond the last date on which a notice of appeal could be filed: “If the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed.”


[14] Sood ultimately settled the fraudulent conveyance action for $500,000.


[15] Under Civil Code section 47, subdivision (b), “[t]he usual formulation [of the litigation privilege] is that [it] applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.’ [Citation.] [¶] The litigation privilege is absolute; it applies, if at all, regardless whether the communication was made with malice or the intent to harm. [Citation.] . . . [T]he privilege has been extended to . . . all torts other than malicious prosecution. [Citations.] . . . [¶] If there is no dispute as to the operative facts, the applicability of the litigation privilege is a question of law. [Citation.] Any doubt about whether the privilege applies is resolved in favor of applying it. [Citation.]” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 912.) The privilege “is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Rusheen, supra, _ Cal.4th at p. _.)


[16] The Rusheen Court disapproved of Drum, supra, 107 Cal.App.4th 1009, to the extent it held the attorney’s abuse of process claim was not barred by the litigation privilege because the physical act of levying on property, as opposed to the communicative act in applying for the writ of execution, was noncommunicative conduct that fell outside the litigation privilege. (Rusheen, supra, _ Cal.4th at pp. _.) According to the Court, “where the gravamen of the complaint is a privileged communication (i.e., allegedly perjured declarations of service) the privilege extends to necessarily related noncommunicative acts (i.e., act of levying).” (Id. at p. _.) Because “it is arguable that the gravamen of the cause of action [in Drum] was the judgment creditor’s application for writ of execution in violation of the court-ordered stay, and that the subsequent levy on property during the stay merely resulted from the writ of execution” (id. at p. _), the litigation privilege should have equally applied to both the communicative act in obtaining the writ and the attendant noncommunicative act in levying on the property.



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