Filed 12/19/17 Tucker v. Heritage Custom Estates Assn. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



KEVIN TUCKER,

Cross-Complainant and Appellant,

v.

HERITAGE CUSTOM ESTATES ASSOCIATION et al.,

Cross Defendants and Respondents.
D071958



(Super. Ct. No. 37-2014-00013996-CU-CL-CTL)


APPEAL from an order of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed.

Fitzmaurice & Demergian and David K. Demergian for Cross-complainant and Appellant.
Silldorf Law, Sean K. Kane and Shani O. Zakay for Cross-defendants and Respondents Heritage Custom Estates Association and Sridhar Gopalakrishnan.
Law Office of Frank E. Noble, Frank E. Noble; Howard F. Burns, in pro. per., for Cross-defendant and Respondent Howard F. Burns.
Heritage Custom Estates Association (Heritage) successfully obtained a writ of execution and levied on certain personal property of judgment debtor Kevin Tucker. Contending that the levy was an abuse of court process, Tucker sued Heritage, a homeowners' association for a development of single-family homes located in Poway; Sridhar Gopalakrishnan, a member of Heritage's board of directors; and Howard F. Burns, an attorney who represented Heritage in its postjudgment collection efforts.
Pursuant to California's anti SLAPP statute, Code of Civil Procedure section 425.16, the trial court granted special motions to strike a cross complaint in which Tucker alleged causes of action against Heritage, Gopalakrishnan, and Burns (together Cross defendants) based on the levy of the writ of execution. The court ruled that Cross defendants met their initial burden of showing that the causes of action in the cross complaint arose from Cross defendants' protected activity in a judicial proceeding and that Tucker failed to meet his responsive burden of demonstrating a probability of prevailing on his causes of action. We agree and will affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In a different action, Heritage Custom Estates Association v. Tucker (Super. Ct. San Diego County, No. IN 053684) (Heritage 1), Heritage obtained a judgment against Tucker in the amount of $24,202.50 in late 2006. By the time Heritage obtained a writ of execution in early 2016, the total amount Tucker owed Heritage was $45,253.83, with further postjudgment interest accruing daily. By mid-2016 when Heritage levied on Tucker's property pursuant to the writ of execution, the amount of the debt was $56,928.06.
Pursuant to section 699.030, subdivision (b), at the request of judgment creditor Heritage and based in part on pleadings prepared by Burns and a declaration submitted by Gopalakrishnan, the Heritage 1 trial court issued ex parte orders in favor of Heritage. These orders directed the Sheriff to seize certain of Tucker's personal property from a residence on Old Coach Drive in Poway and a business at a San Diego address. In the Heritage 2 cross complaint, Tucker alleges that, in Heritage's effort to satisfy the judgment in Heritage 1, Heritage and Burns, with the assistance of Gopalakrishnan, seized property of Tucker "worth far in excess of the amount of" the writ of execution. Based primarily on these allegations, Tucker asserted the following causes of action: abuse of process against Heritage and Burns; and abuse of process and conspiracy against Gopalakrishnan.
Cross defendants each filed an anti SLAPP motion directed to the cause(s) of action that Tucker asserted against each. Tucker filed a combined opposition to the motions, and Cross defendants filed their respective replies.
Following oral argument, the trial court issued a written ruling granting the motions. More specifically, consistent with the requirements of the anti SLAPP statute (see pt. II.A.1., post), the court concluded that Cross defendants met their initial burden of showing that the causes of action in the cross complaint arose out of Cross defendants' constitutionally protected activity in a judicial proceeding and that Tucker failed to meet his responsive burden of demonstrating a probability of prevailing on any of the causes of action. (§ 425.16, subd. (b)(1).) Tucker timely appealed. (See §§ 425.16, subd. (i), 904.1, subd. (a)(13) [order granting anti SLAPP motion is appealable].)
II.
DISCUSSION
On appeal, Tucker argues that the trial court erred in reaching its rulings on both prongs of the section 425.16 analysis. As we explain, we disagree. Following our independent review of the record, we conclude that, based on the litigation privilege (Civ. Code, § 47, subd. (b)), and our Supreme Court's application of this privilege in the anti SLAPP context in Rusheen v. Cohen (2006) 37 Cal.4th 1048 (Rusheen), the causes of action that contain claims for abuse of process and conspiracy to abuse process arise from constitutionally protected activity and lack minimal merit; thus, they are the types of claims that the Legislature intended to be stricken under the anti SLAPP statute.
A. Legal Standards
1. Anti SLAPP; Section 425.16
Section 425.16, subdivision (b)(1) provides in full: "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." As potentially applicable here, the activity protected by this statute includes "any written or oral statement or writing made before a . . . judicial proceeding" or "any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body." (§ 425.16, subd. (e)(1), (2).) The Legislature has directed that the anti SLAPP statute "be construed broadly." (§ 425.16, subd. (a).)
In applying section 425.16, subdivision (b)(1), a court generally is required to engage in a two-step process. "First, the defendant must establish that the challenged claim arises from activity protected by section 425.16." (Baral, supra, 1 Cal.5th at p. 384.) "If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Ibid.) " 'Only a cause of action that satisfies both prongs of the anti SLAPP statute — i.e., that arises from protected speech or petitioning and lacks even minimal merit — is a SLAPP, subject to being stricken under the statute.' " (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
"We review de novo the grant . . . of an anti-SLAPP motion. . . . We exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity. . . . In addition to the pleadings, we may consider affidavits concerning the facts upon which liability is based. (§ 425.16, subd. (b)(2) . . . .) We do not, however, weigh the evidence, but accept the plaintiff's submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067, citations omitted.)
The order striking the cross complaint is presumed correct, and Tucker (as the appellant) has the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
2. Litigation Privilege; Civil Code Section 47, Subdivision (b)
The litigation privilege is codified as follows at Civil Code section 47, subdivision (b): "A privileged publication or broadcast is one made . . . [i]n any . . . judicial proceeding . . . ." "This privilege is absolute in nature, applying 'to all publications, irrespective of their maliciousness.' " (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment); accord, Rusheen, supra, 37 Cal.4th at p. 1064 [litigation privilege is " 'an absolute privilege' "]; Silberg v. Anderson (1990) 50 Cal.3d 205, 215 (Silberg) ["litigation privilege is . . . absolute in nature"].) The privilege is " 'held applicable to any communication, whether or not it amounts to a publication.' " (Rusheen, at p. 1057, quoting Silberg, at p. 212.) So long as the communication has " 'some relation' to judicial proceedings[,]' " it is " 'absolutely immune from tort liability' by the litigation privilege." (Rusheen, at p. 1057, italics added.)
" 'The usual formulation is that the privilege 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 [has] some connection or logical relation to the action.' " (Rusheen, supra, 37 Cal.4th at p. 1057, quoting Silberg, supra, 50 Cal.3d at p. 212.) Because the litigation privilege is "absolute" (Action Apartment, supra, 41Cal.4th at p. 1241; Rusheen, at p. 1064; Silberg, at p. 215), we are to give it "a broad interpretation" (Action Apartment, at p. 1241). "It is not limited to statements made during a trial or other proceedings, but may extend to steps taken . . . afterwards." (Rusheen, at p. 1057, italics added; accord, Action Apartment, at p. 1241.)
In Rusheen, an attorney filed an allegedly false proof of service of process that eventually led to obtaining a default judgment. (Rusheen, supra, 37 Cal.4th at pp. 1053-1054.) The judgment debtor sued the attorney for abuse of process, and the attorney filed an anti SLAPP motion, asserting the litigation privilege as a defense. (Id. at p. 1054.) The court framed the issue as follows: "Because the litigation privilege protects only publications and communications, a 'threshold issue in determining the applicability' of the privilege is whether the defendant's conduct was communicative or noncommunicative. [Citation.] The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. [Citations.] That is, the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature." (Id. at p. 1058.) The Supreme Court disagreed with the judgment debtor's argument that the abuse of process claim was based on the noncommunicative act of merely levying or enforcing the judgment. (Id. at p. 1061.) In actuality, according to the court, the gravamen of the abuse of process claim was "the procurement of the judgment based on the use of allegedly perjured declarations of service" — which was a communicative act. (Id. at p. 1062.)
The court then concluded that, because the gravamen of the action was a communicative act related to obtaining the judgment, the privilege also extended to "necessarily related noncommunicative acts" associated with postjudgment enforcement, including specifically the "act of levying." (Rusheen, supra, 37 Cal.4th at p. 1062.) As a result, the judgment debtor could not show a probability of prevailing on the merits for purposes of the second prong of the anti SLAPP statute. (Rusheen, at pp. 1057, 1066.)
We now apply these authorities to the record before us.
B. Analysis
1. Cross defendants Met Their Initial Burden of Establishing that the Cross complaint Was Based on Protected Activity
In his opening brief on appeal, Tucker argues that the gravamen of his abuse of process claims is that Cross defendants abused the writ of execution process "by causing the levy on, and seizure of, [Tucker's] personal property worth far more than the amount of the [j]udgment for which the [w]rit of [e]xecution was issued." According to Tucker, because the levy and seizure of the personal property were "active conduct," they were noncommunicative acts — and thus not protected activity — for purposes of the prong one analysis under section 425.16, subdivision (b)(1).
In Rusheen, the Supreme Court differentiated between (1) the communicative acts involved in filing an allegedly falsified proof of service and obtaining the judgment based thereon from (2) the noncommunicative acts involved in enforcing of the judgment. (Rusheen, supra, 37 Cal.4th at pp. 1061-1062.) This distinction is important, because the court determined that "the gravamen of the action was not the levying act, but the procurement of the judgment based on the use of allegedly perjured declarations of service." (Id. at p. 1062.) Thus, what Rusheen teaches is that "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)." (Ibid.)
To apply this standard, therefore, we must first determine the gravamen of the abuse of process claims in Tucker's cross complaint. (Rusheen, supra, 37 Cal.4th at p. 1058 [distinctions between communicative and noncommunicative conduct "hinges on the gravamen of the action"].) At paragraph 17 of the cross complaint, Tucker alleges in part: Heritage and Burns "caused and directed the Sheriff to execute on the Heritage 1 writ pursuant to the [ex parte order] . . . and to seize the personal property and the piano." (Italics added; some initial capitalization omitted.) Applying the above-quoted language from Rusheen to the present case, therefore, "where the gravamen of the [cross ]complaint is a privileged communication (i.e., [obtaining the writ and ex parte order and instructing the Sheriff accordingly]) the privilege extends to necessarily related noncommunicative acts (i.e., act of [allegedly over-]levying)." (Rusheen, at p. 1062.) Stated differently, Heritage and Burns could not have "caused and directed the Sheriff" to execute the writ or to seize the personal property in a noncommunicative manner.
Causing and directing the Sheriff to serve the writ of execution and seize Tucker's personal property are plainly written or oral statements or writings either "made before a . . . judicial proceeding" or "made in connection with an issue under consideration or review by a . . . judicial body." (§ 425.16, subd. (e)(1), (2); see Rusheen, supra, 37 Cal.4th at p. 1065 ["the process itself of enforcing money judgments is subject to judicial supervision"], citing § 699.519, subd. (a) [on application of judgment creditor, court clerk issues writ of execution], §§ 700.010 & 699.560, subd. (a) [levying officer must serve judgment debtor with copy of writ and notice of levy and return writ to court with report and accounting].) As such, causing and directing the Sheriff to serve the writ and seize the personal property are protected activities for purposes of the anti SLAPP statute. (§ 425.16, subds. (b)(1), (e)(1), (2).)
Accordingly, Tucker did not meet his burden of establishing that the trial court erred in ruling that Cross defendants satisfied the first prong of the anti SLAPP analysis. To the contrary, Cross defendants have sufficiently demonstrated that "the challenged claim[s] arise[] from activity protected by section 425.16." (Baral, supra, 1 Cal.5th at p. 384.)
2. Tucker Did Not Meet His Responsive Burden of Establishing the Probability of Prevailing on the Abuse of Process Causes of Action
The litigation privilege is absolute. (Action Apartment, supra, 41 Cal.4th at p. 1241; Rusheen, supra, 37 Cal.4th at pp. 1057, 1064; Silberg, supra, 50 Cal.3d at pp. 215-216.) Thus, if it applies, it is a complete bar to Tucker's causes of action, and he cannot establish the probability of prevailing. (Rusheen, at p. 1065.) Although the litigation privilege is an affirmative defense for which the defendant has the burden of establishing its application (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 37; Evid. Code, § 500), our Supreme Court has stated that, for purposes of the second step of the anti SLAPP analysis, the privilege is "a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing" (Flatley v. Mauro (2006) 39 Cal.4th 299, 323, italics added; accord, JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1522.)
Significantly, on appeal, Tucker does not mention, let alone attempt to overcome, the litigation privilege in the context of the second step of the anti SLAPP analysis. This is despite the trial court's ruling that "the litigation privilege bars Tucker's cross[ ]complaint" based on the following argument raised by each of Cross defendants in support of the motions in the trial court:
"Tucker cannot show minimum merit because his abuse of process claim is barred by the litigation privilege. [Citation.] The litigation privilege is an absolute privilege and bars all tort causes of action except malicious prosecution. [Citation.] The litigation privilege is relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense plaintiff must overcome to demonstrate a probability of prevailing. [Citation.]"
This is also despite Tucker's acknowledgement on appeal that, under the second prong analysis, he will not meet his burden if his showing "is insufficient as a matter of law."
As we discussed in the prong one analysis at part II.B.1., ante, Rusheen, supra, 37 Cal.4th 1048, held that the absolute litigation privilege immunized noncommunicative acts in levying on a judgment debtor's property. (Id. at p. 1052.) Until Rusheen, the appellate courts addressing the issue had agreed that the communicative act of applying for a writ of execution was protected, but had disagreed over whether the subsequent noncommunicative act of levying on property was also immunized by the litigation privilege. (Ibid., comparing Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009 (Drum) [according to which, the privilege protects obtaining writ of execution, but not the subsequent, noncommunicative acts in levying] with Brown v. Kennard (2001) 94 Cal.App.4th 40 (Brown) [according to which, the privilege protects both obtaining the writ of execution and the subsequent levy].)
In reaching its decision in Rusheen, the Supreme Court expressly disapproved of Drum, supra, 107 Cal.App.4th 1009, which held that "wrongfully levying on property pursuant to a writ of execution is not subject to the litigation privilege" (id. at p. 1028). (Rusheen, supra, 37 Cal.4th at p. 1065.)
Rather, according Rusheen, supra, 37 Cal.4th at page 1065, the better approach was to "appl[y] the litigation privilege to limit the availability of the tort of abuse of process in the judgment enforcement context." For example, Rusheen expressly approved Brown, supra, 94 Cal.App.4th 40, which holds that the litigation privilege barred an abuse of process claim as a matter of law, where the plaintiff alleged that the defendants acted improperly by levying on exempt assets of a nonparty to an invalid judgment (id. at pp. 49-50 ["judgment enforcement efforts, as an extension of a judicial proceeding and related to a litigation objective, are considered to be within the litigation privilege"]; id. at p. 50 ["not only does the privilege protect the application for the writ of execution, it also extends to the act of carrying out the directive of the writ"].) (Rusheen, at p. 1065.) Rusheen, at page 1065, also approved O'Keefe v. Kompa (2000) 84 Cal.App.4th 130, where the Court of Appeal ruled that enforcement efforts (levying on a bank account and filing an abstract of judgment) were privileged as "extension[s] of th[e] judicial process" which "were logically and legally related to the realization of a litigation objective — that is, collection of a judgment." (Id. at pp. 134, 135.)
For these reasons, we conclude that Cross defendants' acts of causing and directing the Sheriff to serve the writ of execution and seize Tucker's personal property and their related aftermath (which we have assumed without deciding includes over-levying) were absolutely privileged. We understand that application of the litigation privilege means that Tucker has no abuse of process claim against Cross defendants. However, one of the policies furthered by Civil Code section 47, subdivision (b), is "freedom of access to the courts without fear of being harassed subsequently by derivative tort actions." (Silberg, supra, 50 Cal.3d at p. 213.) Moreover, Tucker was not without a remedy for Cross defendants' allegedly improper collection efforts at the time the Sheriff seized his personal property; the Supreme Court noted that a judgment debtor like Tucker can move to recall and quash the writ of execution, post an undertaking, seek a writ of supersedeas, or file a claim of exemption. (Rusheen, supra, 37 Cal.4th at p. 1064.)
Finally, in his prong two analysis, Tucker also sets forth what he contends are the "elements of an action for civil conspiracy" and sufficient evidence to establish a probability of success in his claim against Gopalakrishnan for conspiracy to abuse the process associated with Heritage's postjudgment collection efforts in Heritage 1. However, "a civil conspiracy does not give rise to a cause of action unless an independent civil wrong has been committed" (Rusheen, supra, 37 Cal.4th at p. 1062); and, here, the only civil wrong pleaded is abuse of process — a tort that we have already concluded is barred by the litigation privilege.
Accordingly, Tucker did not meet his burden of establishing that the trial court erred in ruling that he failed to satisfy the second prong of the anti SLAPP analysis. By failing to defeat the application of the litigation privilege, Tucker did not "demonstrate the merit of the claim [of abuse of process] by establishing a probability of success." (Baral, supra, 1 Cal.5th at p. 384.)
3. Cross defendants Are Entitled to Seek Attorney Fees for this Appeal
Each of Cross defendants request an award of attorney fees and costs on appeal. In his reply, Tucker does not respond to these requests.
Statutory authorization for the recovery of attorney fees incurred in the trial court necessarily includes attorney fees on appeal, unless the statute expressly provides otherwise. (In re Conservatorship of McQueen (2014) 59 Cal.4th 602, 610-611; Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 928.) The statute at issue here, section 425.16, subdivision (c)(1), allows for the recovery of attorney fees for "a prevailing defendant" on an anti SLAPP motion. Accordingly, after issuance of the remittitur, upon a proper showing in the superior court, Cross defendants are entitled to an award of reasonable attorney fees on appeal under section 425.16, subdivision (c)(1).
DISPOSITION
The trial court's order granting Cross defendants' special motions to strike Tucker's cross complaint is affirmed. Heritage, Gopalakrishnan, and Burns are entitled to recover their respective costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)



IRION, J.

WE CONCUR:




NARES, Acting P. J.




HALLER, J.