Aryeh v. Boudaie

 

 

 

Filed 12/19/13 
Aryeh v. Boudaie CA2/1

 

 

 

>NOT TO BE PUBLISHED IN THE
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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

SECOND APPELLATE DISTRICT

 

DIVISION ONE

 

 
>

JAMSHID ARYEH,               Plaintiff and Respondent,               v.   DANIEL BOUDAIE,               Defendant and Appellant.

B243634         (Los Angeles County       Super. Ct. No. BC472305)

 

 

            APPEAL
from an order of the Superior Court of Los
Angeles County, Malcolm H. Mackey, Judge.  Affirmed.

            Law
Offices of Farah Faramarzi, Farah Faramarzi; Law Offices of F. Michael
Sabzevar and F. Michael Sabzevar for Defendant and Appellant.

            No
appearance for Plaintiff and Respondent.

 

___________________________________________
clear=all >

            During
a dissolution action, the wife executed a trust deed, without her husband’s
knowledge or consent, purporting to convey a jointly owned condominium to her
brother-in-law.  The brother-in-law
recorded the trust deed.  When the
condominium was sold to a third party, the brother-in-law received in excess of
$150,000 from the proceeds.

            The
husband filed this action against the brother-in-law, alleging several causes
of action arising out of the creation and recordation of the trust deed.  The brother-in-law responded with a href="http://www.fearnotlaw.com/">special motion to strike, contending this
action was a strategic lawsuit against public participation (SLAPP) (Code Civ.
Proc., § 425.16).href="#_ftn1"
name="_ftnref1" title="">[1]  The brother-in-law argued
that the creation or recordation of the trust deed was in connection with an
issue under consideration by a judicial body.  The trial
court denied the motion.  This appeal
followed.

            We
conclude the trial court properly found that the creation or recordation of the
trust deed was not done in connection with an issue under consideration or
review by a legislative, executive, or judicial body or before such a body.  (See § 425.16, subds. (e)(1), (2).)  Therefore, we affirm.

>I

>BACKGROUND

            The
allegations in this appeal are taken from plaintiff’s complaint.  Neither side offered any evidence with
respect to the anti-SLAPP motion.

A.        Complaint

            The
husband’s (plaintiff’s) action against the brother-in-law (defendant) alleged
the following.  “On or about December 4, 2009, Defendant recorded a $300,000.00 lien on certain property owned by
Plaintiff, jointly with Plaintiff’s wife Ferial Aryeh, and located [in] Beverly Hills, California 90210 (‘condo
or property’), without Plaintiff’s knowledge or consent. . . .

            “. . . Defendant’s
lien was recorded in a Deed of Trust and Assignment of Rents dated November 11, 2009.  Such Deed of Trust and
Assignment of Rents was mailed to Ferial Aryeh[, plaintiff’s wife], c/o Patrick
DeCarolis, located at 11620 Wilshire Boulevard, Suite 710, Los
Angeles, California 90025 only once recorded.

            “. . . Defendant
is the brother in law of Ferial Aryeh and knowingly recorded the aforementioned
Deed of Trust and Assignment[] of Rents while a Dissolution action was pending
in the Los Angeles Superior Court (Case BD499163).

            “. . . Defendant
knew that Ferial Aryeh owed/s Plaintiff a fiduciary duty at the time the Deed
of Trust and Assignment[] of Rents was recorded.

            “. . . Plaintiff
has been damaged in excess of $150,000.00.” 
When the condominium was sold, “Defendant received in excess of $150,000
without Plaintiff’s consent.”

            The
complaint further alleged that “Plaintiff owned the property,” and “Defendant
intentionally and substantially interfered with Plaintiff’s property by:  [¶]  a. Taking possession of the
property constructively, or [¶]  b. Preventing Plaintiff from
having access to the Property, or [¶]  c. Destroying the
property, or [¶]  d. Refusing to remove the deed on the property
after Plaintiff demanded its removal.”  â€œDefendant
engaged in wrongful conduct through [misrepresentation, fraud].”  (Bracketed material in original.)

            The
complaint alleged 14 causes of action: 
(1) fraud, (2) conversion, (3) trespass to chattels,
(4) intentional interference with prospective economic relations,
(5) negligent interference with prospective economic relations,
(6) â€œconspiracy—fraud/concealment”
(7) â€œconspiracy—conversion,” (8) â€œconspiracy—trespass to chattels,”
(9) â€œconspiracy—intentional interference with prospective economic
relations,” (10) â€œconspiracy—duty of undivided loyalty,” (11) â€œaiding and
abetting—fraud/concealment,” (12) â€œaiding and abetting—conversion,”
(13) â€œaiding and abetting—trespass to chattels,” and (14) â€œaiding and
abetting— intentional interference with
prospective economic relations.”  A copy
of the “Deed of Trust and Assignment of Rents” (the trust deed) was attached to
the complaint as an exhibit.

B.        Anti-SLAPP
Motion

            On
December 13,
2011, defendant filed a special motion to
strike, contending that this lawsuit was a SLAPP.  Defendant argued that the lawsuit was based
on the recordation or creation of the trust deed and that under section 425.16,
subdivision (e)(1), the recordation or creation of the trust deed constituted a
“written . . . statement or writing made before a . . .
judicial proceeding.”  He also contended
that under section 425.16, subdivision (e)(2), the recordation or creation of
the trust deed constituted a “written . . . statement . . .
made in connection with an issue under consideration by . . . a
judicial body, or any other official proceeding authorized by law
. . . .”  More specifically, defendant asserted that
the recordation or creation of the trust deed was made in connection with the
financial issues under consideration or review in the dissolution action
between plaintiff and his wife.

            As subdivision (e)(2) is
broader than, and encompasses activities protected by, subdivision (e)(1) under
these facts, we refer to both section 425.16,
subdivision (e)(1) and (2) as section 425.16(e)(2) hereafter for ease of
reference.

            In
his opposition papers, plaintiff claimed that “[d]efendant’s recordation of the
trust deed was not a communication . . . in connection with an issue
under consideration by a judicial body, but rather was an attempt to defraud
Plaintiff on behalf of Defendant’s sister-in-law, the party to the dissolution
action.  As joint owner of the property
in question, any actions taken against the property must be approved by both
owners, however, Plaintiff was never consulted nor did he consent to Defendant
recording any Deed of Trust against the property.  This deed was improperly and wrongly
recorded, which is not a protected act . . . . Defendant engaged
in fraudulent activities, intentionally interfered with Plaintiff’s access,
use, possession and control of his property, and intentionally interfered with
Plaintiff’s economic relations with buyers of the property, which again is not
a protected act . . . .”

            On
June 19,
2012, the trial court heard and denied the
anti-SLAPP motion.  The trial court’s
order recited:  “[T]he Complaint does not
fall within any of the subdivisions of Section 425.16(e).  The Complaint arises from Defendant Daniel
Boudaie’s recordation of a lien against real property jointly owned by
Plaintiff and Plaintiff’s wife.  The
recordation of the lien by Defendant Daniel Boudaie does not ‘arise from any
act of [Defendant Daniel Boudaie] in furtherance of [his] right of petition or
free speech under the United States Constitution or the California Constitution
in connection with a public issue.’ 
CCP Section 425.16(b)(1). 
That the recordation occurred during the dissolution proceeding of Plaintiff
and his wife does not change the outcome as Defendant Daniel Boudaie was not a
party to the dissolution action.”

            Defendant
filed a timely appeal.

>II

>DISCUSSION

            name="citeas((Cite_as:_2012_WL_3679639,_*4_(Ca">We review the order denying
the anti-SLAPP motion de novo.  (See Flatley v. Mauro (2006)
39 Cal.4th 299, 325–326.)

            On
appeal, as in the trial court, defendant contends that this lawsuit is a SLAPP
because it is based on his recordation or creation of the trust deed, and the recordation
or creation constituted a “written . . . statement or writing
. . . made in connection with an
issue under consideration or review by a . . . judicial body.”  (§ 425.16, subd. (e)(2).)  The judicial body to which defendant refers
is the court handling the dissolution action.

            However,
defendant has failed to submit any evidence that the recordation or creation of
the trust deed had any “connection with” the dissolution action.  Consequently, he has not established that it
was “made in connection with an issue
under consideration or review by a . . . judicial body.”  (§ 425.16, subd. (e)(2).)  Nor did he establish that the anti-SLAPP law
afforded any other protections.  Thus, it
is not protected.

            Although plaintiff has not made an
appearance on appeal, our de novo review establishes the foregoing result
without the need for briefing by plaintiff.

A.        Pertinent
Anti-SLAPP Law

            “‘The
Legislature enacted the anti-SLAPP statute to protect defendants
. . . from interference with the valid exercise of their
constitutional rights, particularly the right of freedom of speech and the
right to petition the government for the redress of grievances.’”  (Contemporary Services Corp. v. Staff Pro
Inc. (2007) 152 Cal.App.4th 1043, 1052.)

            The statute provides 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), italics added.)  The
statute is to “be broadly construed to encourage continued participation in
free speech and petition activities.”  (Wanland
v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006)
141 Cal.App.4th 15, 22; accord, § 425.16, subd. (a).)

            Section 425.16,
subdivision (e)(2) states:  “As used
in [the anti-SLAPP statute,] ‘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:  . . .
(2) any written . . . statement or writing made in connection with an
issue under consideration or review by a . . . judicial body
. . . .”

            In ruling on an anti-name="SR;3175">SLAPP motion, a trial court engages in a two-name="SR;3185">step process.  The
first step is the one at issue in this case. 
As that first step, the court decides whether defendant has made a
threshold showing that the cause of action arises from protected activity.  The moving defendant bears the burden of
establishing this prerequisite to anti-SLAPP protection.  (Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 67.)

            “To
determine the applicability of . . . the anti-SLAPP statute, [courts]
look to the gravamen of the instant action. . . . [T]he gravamen
of an action is the allegedly wrongful and injury-producing conduct, not the damage which flows from
said conduct.”  (Renewable Resources Coalition, Inc. v. Pebble Mines Corp. (2013)
218 Cal.App.4th 384, 387, italics in original; accord, >Trapp v. Naiman (2013) 218 Cal.App.4th
113, 121.)

B.        Defendant
Has Not Borne His Burden of Establishing that the

            Recordation
or Creation of the Trust Deed Was a Protected Activity

            As
a preliminary matter, we note that the complaint in this case is not a model of
clarity.  It is unclear whether the
gravamen of the lawsuit is (1) the recordation of the trust deed or (2) the
creation of the trust deed.  Regardless
of which theory is the gravamen of this action, defendant has failed to make a
showing that either the recordation or creation of the trust deed was “in
connection with” any issue under review in the dissolution, or any other
judicial, legislative, or executive body or otherwise is protected under
section 425.16, subdivision (e).  Thus, he
has not borne his burden of establishing any right to protection under
anti-SLAPP law.

>1.  Recordation of the Trust Deed

            Defendant
argues that his recordation of the trust deed was protected under the
anti-SLAPP statute because it was a “written . . . statement or
writing . . . in connection with an issue under consideration or review by a . . . judicial body.”  (§ 425.16, subd. (e)(2).)  The “judicial body” he refers to was the
court in which the dissolution action was pending.  However, defendant has offered nothing in the
way of evidence or the allegations of the complaint to link the recordation of
the trust deed to any issue in the dissolution action.

            Defendant has even failed to show
that the dissolution action involved any real property issues.  He assumes that because plaintiff and plaintiff’s
wife co-owned a condominium, the dissolution action must have involved that
property.  We are unable to jump to that
conclusion.

            2.  Creation
of the Trust Deed

            When
plaintiff’s wife executed the trust deed on November 11, 2009, neither her
conduct nor the creation of the deed concerned any furtherance of any person’s
right to petition or free speech in connection with any public issue.  Therefore, it was not a protected activity
under the anti-SLAPP statute.  Rather, it
was a private transaction.  (See >Blackburn v. Brady (2004) 116 Cal.App.4th
670, 676–677 [business event or transaction was not protected activity under
anti-SLAPP statute]; Kachlon v. Markowitz
(2008) 168 Cal.App.4th 316, 339 [“Though regulated by statute as a matter
of public policy, nonjudicial foreclosure is a private procedure involving
private parties, occurring pursuant to a private power of sale contained in a
deed of trust” not intended to be protected under anti-SLAPP-law]; Kajima
Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th
921, 932 [“The submission of contractual claims for payment in the regular
course of business before the commencement of litigation simply is not an act
in furtherance of the right of petition or free speech within the meaning of
the anti-SLAPP statute.”]; id. at
pp. 929–931 [explaining that cross-complaint alleged causes of action
arising from cross-defendant’s bidding and contracting practices, not from acts
in furtherance of its right of petition or free speech].)

            In
sum, none of plaintiff’s causes of action is based on any activity protected by
the anti-SLAPP statute.

            Having
resolved this issue in plaintiff’s favor, we need not decide whether plaintiff
made a prima facie showing that he is likely to prevail on one or more causes
of action at trial.  (See City of
Cotati v. Cashman (2002) 29 Cal.4th
69, 80–81.)

            The
trial court properly denied the anti-SLAPP motion.

>III

>DISPOSITION

            The order is affirmed.

            NOT TO BE PUBLISHED.

 

                                                                                    MILLER, J.href="#_ftn2" name="_ftnref2" title="">*

We concur:

 

            ROTHSCHILD,
Acting P. J.

 

            JOHNSON,
J.