Billings v. Ofseyer

Filed 6/28/10 Billings v. Ofseyer 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Thomas S. Garza, Michael A. Sachs and Larry W. Allen, Judges. Affirmed.

Joseph Billings, in pro. per., for Cross-complainant and Appellant.

Waxler Carner Brodsky, Andrew J. Waxler and Scott K. Murch for Cross-defendants and Respondents Jeremy J. Ofseyer and Nethery & Ofseyer, LLP.

Reback, McAndrews, Kjar, Warford & Stockalper, Robert C. Reback and Cindy A. Shapiro for Cross-defendants and Respondents Robert Warford and Reback, McAndrews & Kjar, LLP.

Musick, Peeler & Garrett, Wayne B. Littlefield and Teresa Cho for Cross-defendant and Respondent Lawyers Mutual Insurance Company.

Antoinette Billings (Antoinette) sued her brothers, John Billings (John) and Joseph Billings (Joseph), to quiet title to a parcel of real property.^[1] Antoinette also sued Johns alleged attorney, D.M. Davis (Davis) for malpractice. Joseph filed a third amended cross-complaint against (1) Antoinette; (2) Antoinettes trial attorney, Jeremy J. Ofseyer (Ofseyer); (3) Ofseyers law firm, Nethery & Ofseyer, LLP (Nethery & Ofseyer); (4) Daviss malpractice insurer, Lawyers Mutual Insurance Co. (Lawyers Mutual); (5) Daviss malpractice defense lawyer, Robert Warford (Warford); (6) Warfords law firm, Reback, McAndrews & Kjar, LLP (RMK); (7) Antoinettes bankruptcy attorney, Paul Toscano (Toscano); and (8) Toscanos law firm, Paul Toscano, P.C. The details of Josephs causes of action will be presented in the Facts section.

Ofseyer and Nethery & Ofseyer filed the first anti-SLAPP^[2]motion against Josephs third amended cross-complaint. (Code Civ. Proc., 425.16.)^[3] Lawyers Mutual filed the second anti-SLAPP motion against Josephs cross-complaint. ( 425.16.) Warford and RMK filed the third anti-SLAPP motion against the cross-complaint. ( 425.16.) The trial court granted the three anti-SLAPP motions.

Joseph Billings contends that the trial court erred by granting the three anti-SLAPP motions because (1) Lawyers Mutual, Warford, RMK, Ofseyer, and Nethery & Ofseyer (collectively, the Lawyers) did not have standing to bring their anti-SLAPP motions; (2) the trial court lacked jurisdiction to conduct the anti-SLAPP motion hearing; (3) the trial court denied Joseph due process; (4) Joseph established prima facie cases on all of his causes of actions against the Lawyers; and (5) the trial court incorrectly awarded attorneys fees to the Lawyers. We affirm the judgments.

FACTUAL AND PROCEDURAL HISTORY

We present a comprehensive history of the litigation in the instant case, rather than limiting our presentation to the facts directly pertaining to the anti-SLAPP motions, because it is useful when analyzing the issues presented on appeal.

A. ANTOINETTES VERIFIED FIRST AMENDED COMPLAINT

Antoinette, represented at trial by Ofseyer of Nethery & Ofseyer, filed a verified first amended complaint against Davis, John, and Joseph. In her complaint, Antoinette alleged that she and her father, Henry Billings (Henry), took title to a parcel of real property in Yucca Valley (the property) as joint tenants, in July 1996. On December 27, 2006, Henry died.

A quitclaim deed dated December 12, 2006, but filed by Davis 12 days after Henrys death on January 8, 2007, purported to convey Henrys undivided one-half interest in the property to himself and Antoinette as tenants in common. The December 12 deed was allegedly invalid; however, it purportedly served to end the joint tenancy. Henrys will purported to devise his one-half interest in the property to John and Joseph, and therefore John and Joseph contended that they were the owners of a one-half interest in the property, based upon the December 12 deed and Henrys will.

Antoinettes complaint sought (1) to quiet title to the property against John and Joseph; (2) to enjoin John and Joseph from interfering in Antoinettes use of the property; (3) a finding that Davis slandered Antoinettes title to the property by filing the allegedly invalid December 12 deed; and (4) a finding that Daviss filing of the December 12 deed constituted legal malpractice.

B. JOSEPHS THIRD AMENDED CROSS-COMPLAINT

Joseph filed a third amended cross-complaint on September 16, 2008.^[4] Joseph named a variety of people and entities as cross-defendants, including (1) Antoinette; (2) Ofseyer; (3) Nethery & Ofseyer; (4) Warford; (5) RMK; (6) Lawyers Mutual; (7) Toscano; and (8) Paul Toscano, P.C.

1. ANTOINETTE & THE PROPERTY

In regard to Antoinette and the property, Joseph made the following allegations in his complaint: Henry and his wife, Florence Billings (Florence), purchased the property as joint tenants in 1960. In 1996, when Florence was dying, Henry and Florence terminated their joint tenancy. Henry and Florence asked Antoinette to hold the property as a cotenant trustee with Henry, in trust for herself, Joseph, and John. Antoinette promised to distribute the property amongst the siblings in one-third shares upon Henrys death.

Based upon Antoinettes promise, Henry, John, and Joseph did not have their interests recorded in writing. In December 2006, Henry, out of an abundance of caution, executed a severance deed and a will, which devised his one-half interest in the property to John and Joseph, i.e., the December 12 deed.

2. THE LAWYERS

In regard to the Lawyers, Josephs complaint included the following allegations: Davis was Johns attorney, and Joseph was Johns intended beneficiary of Daviss services. Lawyers Mutual provided Davis with malpractice insurance. Ofseyer, Lawyers Mutual, Warford, and RMK colluded to disrupt Daviss attorney-client relationship with John, and his intended beneficiary, Joseph, in order to prevent John and Joseph from prevailing in the litigation concerning the property.

Joseph alleged the following details of the Lawyers conspiracy: Warford and RMK were retained by Lawyers Mutual to represent Davis in Antoinettes malpractice action. Warford and RMK intentionally did not assert Daviss affirmative defenses in Antoinettes malpractice action. Warford and RMK also included false admissions in Daviss answer to Antoinettes complaint, which were designed to harm John and Josephs quiet title action. Lawyers Mutual, Warford and RMK then invited Ofseyer to file a motion for a judgment on the pleadings based upon the inadequate answer filed by Warford and RMK. In response to Warford and RMKs filing of the inadequate answer, Ofseyer agreed to waive all of Antoinettes claims against Davis, and move only for a judgment quieting title to Antoinette. Based upon the foregoing conspiratorial arrangement, Warford and RMK agreed not to oppose Ofseyers motion, and agreed to discourage Davis from opposing the motion. As a result, Antoinette would receive all the rights and interests in the property, and the only cost would be those associated with the preparation and filing of the inadequate answer.

3. CAUSES OF ACTION

Josephs complaint includes many causes of action against Antoinette, the Lawyers, and Toscano. We briefly summarize the relevant causes of action:

First, Joseph sought to quiet title against Antoinette. Joseph alleged that Antoinette engaged in a variety of deceptive acts, and therefore John and Joseph should be declared the sole owners of the property.

Second, Joseph alleged that Antoinette slandered his title to the property by intentionally recording a false Affidavit of Death of a Joint Tenant at the San Bernardino County Recorders Office.

Third, Joseph claimed that Ofseyer, and Nethery & Ofseyer executed a lien against the property to secure Antoinettes legal fees, thereby slandering his title to the property.

Fourth, Joseph sought cancellation of (1) Nethery & Ofseyers lien against the property; (2) the quitclaim deed executed by Henry in July 1996; and (3) the Affidavit of Death of a Joint Tenant executed by Antoinette. Further, Joseph claimed that the cross-defendants failure to cancel the aforementioned documents caused him to suffer emotional distress.

Fifth, Joseph alleged the Lawyers maliciously interfered with John and Daviss attorney-client relationship.

Sixth, the Lawyers abused the judicial process by using it to carrying out their conspiratorial plan to interrupt John and Daviss attorney-client relationship.

Seventh, Joseph sought preliminary and permanent injunctions prohibiting the Lawyers from interfering with Daviss confidential communications with John and Joseph.

C. ANTI-SLAPP MOTIONS

1. OFSEYER AND NETHERY & OFSEYER

Ofseyer and Nethery & Ofseyer argued that Josephs causes of action against them arose from Ofseyers prosecution of Antoinettes complaint, and therefore should be stricken pursuant to the anti-SLAPP statute, because prosecuting a complaint is a protected activity.

The trial court found that Josephs causes of actions arose from Ofseyer and Nethery & Ofseyers protecting petitioning activity. Further, the trial court found that Joseph did not demonstrate that he was likely to prevail on his abuse of process claim against Ofseyer and Nethery & Ofseyer, because Joseph did not demonstrate an abuse of the courts power. Additionally, the trial court found that Joseph was not likely to prevail on his claims of malicious interference because he did not prove that a duty was owed to him. Finally, the trial court found that Josephs causes of action were barred by the litigation privilege (Civ. Code, 47). In sum, the trial court granted Ofseyer and Nethery & Ofseyers anti-SLAPP motion.

2. LAWYERS MUTUAL

Lawyers Mutual also filed an anti-SLAPP motion against Josephs complaint. Lawyers Mutual asserted that Joseph was seeking to penalize them for exercising their right to participate in litigation, which is a protected activity. Lawyers Mutual also argued that Joseph was not likely to prevail upon his claims against Lawyers Mutual because (1) Josephs causes of action were barred by the litigation privilege, and (2) Lawyers Mutual did not owe a duty of care to Joseph.

The trial court found that the causes of action against Lawyers Mutual arose from Lawyers Mutuals protected petitioning activity. The court found that Joseph failed to show that Lawyers Mutual abused the power of the court. Additionally, the trial court found that Josephs claim of malicious interference failed because a duty was not owed to Joseph. Further, the trial court concluded that the abuse of process claim and the malicious interference claims were barred by the litigation privilege. (Civ. Code, 47.)

3. WARFORD AND RMK

Warford and RMK filed an anti-SLAPP motion against Josephs complaint. Warford and RMK asserted that Joseph was attempting to penalize them for defending Davis in the legal malpractice action. Warford and RMK argued that their representation of Davis was protected by the litigation privilege. Further, Warford and RMK claimed that Joseph was not likely to prevail on his actions against them, because there was no evidence of an attorney-client relationship between John, Joseph and Davis, and therefore Warford and RMK could not have interfered in the attorney-client relationship.

The trial court found that Josephs claims against Warford and RMK arose from Warfords and RMKs protected petitioning activity. The trial court struck Josephs abuse of process claims against Warford and RMK due to Josephs failure to show that Warford and RMK abused the power of the court. Further, the court granted Warford and RMKs motion to strike Josephs malicious interference cause of action on the ground that Warford and RMK did not owe a duty to Joseph. Further, the trial court found that both causes of action were barred by the litigation privilege (Civ. Code,  47). In sum, the trial court granted the anti-SLAPP motion.

DISCUSSION

Joseph contends that (1) Lawyers Mutual, Warford, RMK, Ofseyer, and Nethery & Ofseyer did not have standing to bring anti-SLAPP motions; (2) the trial court denied him due process; (3) the trial court lacked jurisdiction to decide the three anti-SLAPP motions; (4) he established a prima facie case for malicious interference with attorney-client relations, and for abuse of process against the Lawyers; (5) he established a prima facie case for slander of title and cancellation of instruments against Ofseyer and Nethery & Ofseyer; and (6) the trial court committed a variety of errors by awarding attorneys fees. We disagree with Josephs contentions.

We address Josephs contentions concerning the merits of the motions, followed by the procedural contentions, and then the contentions concerning the award of attorneys fees.

A. MERITS OF THE ANTI-SLAPP MOTIONS

A hearing on an anti-SLAPP motion is conducted in two steps: (1) the defendant demonstrates that the act underlying the plaintiffs cause of action arises from protected activity, i.e., defendants rights of petition or free speech; and then, if the defendant meets his burden; (2) the plaintiff demonstrates a probability of prevailing on his cause of action. (In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.)

We apply the de novo standard of review to the trial courts rulings on the motions. (Cabral v. Martins (2009) 177 Cal.App.4th 471, 479.)

1. PROTECTED ACTIVITY

In Josephs opening brief, under the heading concerning standing, Joseph contends the trial court erred by granting Lawyers Mutuals, Warfords, and RMKs anti-SLAPP motions because Josephs claims against them do not concern protected activities. In other words, a large portion of Josephs argument does not concern standing, rather, it addresses the first prong of the anti-SLAPP analysis, i.e., whether the parties activities are protected. We will address this argument, despite Josephs failure to raise it under a separate heading. (Cal. Rules of Court, rule 8.204(a)(1)(B); Tilbury Constructors, Inc. v. State Compensation Ins. Fund (2006) 137 Cal.App.4th 466, 482.)

The anti-SLAPP statute protects parties who are sued as a result of activities that arise from their right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . . ( 425.16, subd. (b)(1).) An act in furtherance of a persons 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 . . . judicial proceeding . . . ; [and] (2) 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).) Thus, [a] cause of action arising from [a] defendants litigation activity may appropriately be the subject of a section 425.16 motion to strike. [Citation.] (McConnell v. Innovative Artists Talent and Literary Agency, Inc. (2009) 175 Cal.App.4th 169, 175.)

In deciding whether the initial arising from requirement is met, a court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability . . . is based. [Citation.] (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

Josephs complaint alleged that Warford and RMK were retained by Lawyers Mutual to defend Davis against Antoinettes malpractice claim. Joseph asserted that Warford and RMK refused, obstructed, and prevented confidential consultation between . . . Davis and her client John . . . and intended beneficiary, Joseph. Additionally, Joseph alleged that Warford and RMK filed an inadequate answer to . . . Antoinette[s] action to quiet title, which made false admissions designed to harm attorney Davis client, John . . . and intended beneficiary, Joseph.

Joseph also claimed that Lawyers Mutual, acting through Warford and RMK, invited Ofseyer to file a motion for a judgment on the pleadings, following the false admissions filed by Warford and RMK. Ofseyer allegedly agreed to file a motion for judgment of the pleadings, and waive all claims against Davis. In his complaint, Joseph further asserted that Warford and RMK agreed that they would not oppose the motion for judgment on the pleadings, and they would discourage Davis from opposing the motion as well, as a condition of continuing her malpractice insurance.

All of the foregoing actions that Joseph complains about arose from Warford and RMKs representation of Davis in Antoinettes malpractice action, and from Lawyers Mutuals retention of Warford and RMK to represent Davis. In other words, Warfords, RMKs, and Lawyers Mutuals actions were based in part on written or oral statements or writings made in connection with an issue under consideration by a judicial body, and therefore their actions are protected activities.^[5] ( 425.16, subd. (e).)

Joseph asserts that Lawyers Mutuals, Warfords, and RMKs actions are not protected activities because illegal activities are not insulated by the First Amendment. Josephs argument confuses the anti-SLAPP analysis. The possible illegality of Lawyers Mutuals, Warfords, and RMKs conduct is relevant to proving that Joseph is likely to prevail on his causes of actionsit is not relevant to proving, or disproving, that the conduct arose from petitioning activities. In other words, the fact that a defendants alleged activity is illegal does not sway the analysis of whether the activity arose from protected actions, rather, it sways the analysis concerning the plaintiffs likelihood of prevailing. For example, when looking at the defendants actions to determine if they fall within one or more of the categories of protected activities, one of the critical questions to ask is, Did the defendants actions arise from petitioning a court? If the answer is yes, then the defendants actions most likely arose from a protected activity. If the defendants activities were illegal, and there is some proof of such illegal activities, then the plaintiff is likely to prevail on his cause of action, and the anti-SLAPP motion will be denied.

Next, Joseph argues that the delivery of insurance services is not a protected activity. Joseph relies on section 425.17, subdivision (c), which provides that anti-SLAPP motions are not applicable to causes of action arising from a statement or conduct by a person primarily engaged in the business of selling goods or services, such as insurance, if the statement or conduct (1) consists of representations of fact about that persons or a business competitors business operations, goods, or services, that is made for the purpose of obtaining or promoting sales or leases of the persons goods or services, or the statement or conduct was made in the course of delivering the persons goods or services; and (2) the intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to an actual or potential buyer or customer, or the statement or conduct arose out of or within the context of a regulatory approval process.

Josephs causes of action concerning Lawyers Mutual do not concern representations of fact about Lawyers Mutuals or a competitors business. Accordingly, we disagree with Josephs argument Lawyers Mutuals activities are exempt from SLAPP protection.

Joseph argues that section 425.17, subdivision (c), was applicable to Lawyers Mutual because (1) it was an insurance company, and (2) its actions arose from the delivery of services to Davis. We do not find Josephs argument persuasive, because Joseph is suing Lawyers Mutual based upon its alleged conspiracy to disrupt John and Daviss attorney-client relationship via use of the judicial process. In other words, Joseph is not seeking to hold Lawyers Mutual liable for statements and conduct consisting of representations of fact about Lawyers Mutual business, or statements to an actual or potential buyer.

2. LIKELIHOOD OF PREVAILING

Joseph contends that the trial court erred when it concluded that he was not likely to prevail on his causes of action against the Lawyers.

We determine whether Joseph has made a prima facie showing of facts necessary to establish his claim at trial, and evaluate the Lawyers evidence only to determine if it defeats Josephs showing as a matter of law. (Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th, 1049, 1071.)

a) Abuse of Process

[T]he essence of the tort abuse of process lies in the 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. (Meadows v. Bakersfield Sav. & Loan Assn. (1967) 250 Cal.App.2d 749, 753.) To succeed in an action for abuse of process, a litigant must establish two elements: that the defendant (1) contemplated an ulterior motive in using the process; and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings. (Brown v. Kennard (2001) 94 Cal.App.4th 40, 44.)

In other words, abuse of process is shown where a defendant acts in a manner not authorized by the process or if the defendants actions are aimed at an objective that is not a legitimate use of the process; however, the tort does not lie where a defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. (Spellens v. Spellens (1957) 49 Cal.2d 210, 232.) For example, [t]he improper [use] usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort. (Id. at pp. 232-233, italics omitted.)

(1) Josephs Declaration

In Josephs declaration in support of his opposition to the Lawyers anti-SLAPP motions, Joseph declared that the evidence supporting his causes of action for abuse of process are uniquely and exclusively under cross-defendants control. Joseph declared that he served Lawyers Mutual and Ofseyer with timely notices of deposition and requests to produce documents. Joseph declared that the trial court denied his ex parte applications to conduct discovery.

(2) Josephs Supplemental Declaration

In a supplemental declaration in support of his opposition to the Lawyers anti-SLAPP motions, Joseph declared that Larry White (White), an associate at RMK, refused to amend Daviss answer to Antoinettes complaint to remove the false admission that Antoinette was entitled to the property, and refused to include the family trust agreement as an affirmative defense to Antoinettes malpractice action. White told Joseph that he had ordered Davis not to communicate with John or Joseph. Joseph further declared that Warford admitted to Joseph that he entered into a collusive arrangement with . . . Ofseyer to deliver the property to Antoinette by setting-up a motion for judgment on the pleadings, which [RMK] would not oppose.

(3) Josephs Oral Presentation

At the hearing on the anti-SLAPP motions, Joseph argued (1) the trial court did not have jurisdiction to rule upon the motions due to the alleged untimeliness of the hearing; and (2) Lawyers Mutual did not have standing to bring an anti-SLAPP motion. Joseph did not discuss any evidence during the hearing.

(4) Warford and RMKs Evidence

Warford and RMK, in support of their anti-SLAPP motion, included a declaration by Davis. In Daviss declaration, she declared that she never acted as Josephs attorney. Davis further declared John was her client in 1998; however, in October 1998 the San Bernardino County Superior Court granted Daviss motion to be relieved as Johns counsel, and Davis had not represented him since that ruling. Davis declared that she was retained as Henrys attorney in December 2006.

(5) Ofseyer and Nethery & Ofseyers Evidence

Ofseyer and Nethery & Ofseyer, in support of their anti-SLAPP motion, included (1) a declaration by Ofseyer; (2) a variety of documents pertaining to the title search on the property and the associated litigation guarantee; (3) e-mails from Joseph to Scott Murch, Ofseyers trial attorney; and (4) the same declaration by Davis that is described ante.

(6) Lawyers Mutual Argument

Lawyers Mutual, in support of its anti-SLAPP motion, argued that Josephs claims arose out of activities pertaining to the instant litigation, and therefore were barred by the litigation privilege. (Civ. Code, 47.)

(7) Analysis

The only evidence offered by Joseph to prove his prima facie case was his own uncorroborated and self-serving declarations, which consisted of large amounts of hearsay. (See King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 [self-serving declarations do not create an issue of fact].) Josephs claims that the Lawyers colluded to disrupt his and Johns relationship with Davis is contradicted by Daviss declaration disavowing an attorney-client relationship with John and Joseph related to the instant litigation. Joseph did not offer a contract, letter, or e-mail showing an attorney-client relationship between Davis and himself or John. In sum, Joseph has not established a prima facie case that the Lawyers contemplated an ulterior motive in using the judicial process, because it appears from the record that there was not an attorney-client relationship with Davis that the Lawyers could interrupt. Further, Joseph has not shown that the Lawyers committed a willful act in the use of the process not proper in the regular conduct of the proceedings, because his only evidence is hearsay. Accordingly, the trial court did not err by concluding that Joseph was not likely to prevail on his abuse of process claims.

Joseph contends that he established a prima facie case for abuse of process against the Lawyers. In Josephs opening brief, he asserts that he asked the trial court to take judicial notice of a variety of documents; Joseph does not support this assertion with a citation to the record, nor does he explain whether the trial court granted his request for judicial notice. Next, Joseph cites to approximately 150 pages of his appellants appendix and argues that he introduced a variety of documents tending to prove his conspiracy allegations against the Lawyers. Our review of the 150 pages shows that most of them are marked sequentially as Request 1, Request 2, etc. Joseph does not cite to the record to show that the trial court accepted his requests for judicial notice. Accordingly, we find Josephs argumentthat he established a prima facie caseto be unpersuasive.

Moreover, to the extent that Joseph could demonstrate a prima facie case for abuse of process, his claims are barred by the litigation privilege. (Civ. Code, 47.) The litigation privilege immunizes litigants from liability for torts, other than malicious prosecution, which arise from communications in judicial proceedings. [Citation.] The privilege generally applies to any communication by a litigant in a judicial proceeding that is made to achieve the objects of the litigation and has some connection or logical relation to the action. [Citation.] The primary purpose of the privilege is to afford litigants the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citation.] [] A threshold issue with respect to the privilege is whether the injury arose from communicative acts, which are privileged, or noncommunicative conduct, which is not. [Citation.] (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770.)

Joseph seeks to hold the Lawyers liable for speaking to one another, filing an answer, filing a judgment on the pleadings, and moving to dismiss causes of action. Pleadings and process in a case are generally viewed as privileged communications. [Citations.] (Navellier v. Sletten, supra,106 Cal.App.4th at pp. 770-771.) Consequently, Josephs claims arise from the Lawyers communicative acts related to the instant litigation. Therefore, the litigation privilege bars Josephs abuse of process claims. (Civ. Code, 47.)

Joseph argues that the litigation privilege does not bar his abuse of process claims. Joseph asserts that the communications at issue were not made during judicial proceedings. Contrary to Josephs position, [t]he requirement that statements be made in judicial proceedings does not limit the privilege to the pleadings and the evidence offered in court. [Citation.] A publication is privileged when it is required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is invoked. [Citation.] Thus, publications made in the course of a judicial proceeding can include communications made prior to the commencement of a lawsuit. [Citations.] (Wilton v. Mountain Wood Homeowners Assn. (1993) 18 Cal.App.4th 565, 569, fn. omitted].) Based upon the foregoing rules and principles, the Lawyers discussions about the instant litigation were privileged, even though they occurred outside of a courtroom. Accordingly, we find Josephs argument unpersuasive.

b) Malicious Interference

Joseph has titled his ninth cause of action Malicious Interference with Attorney-Client Relationship. Our review of Josephs allegations leads us to infer that Joseph is actually asserting the tort commonly known as intentional interference with a contractual relationship.

The elements of the tort intentional interference with a contractual relationship are: (1) . . . a valid contract existed between the plaintiff and another party; (2) . . . the defendant had knowledge of the contract and intended to induce a breach thereof; (3) . . . the contract was breached; (4) as a proximate result of the defendants wrongful or unjustified conduct; (5) the plaintiff suffered damages. (Abrams & Fox, Inc. v. Briney (1974) 39 Cal.App.3d 604, 607-608.)

Joseph introduced his own uncorroborated declaration that John had an attorney-client relationship with Davis. Warford, RMK, Ofseyer, and Nethery & Ofseyer introduced Daviss declaration, which disavowed an attorney-client relationship with John and/or Joseph. Joseph did not provide any independent proof of a contractual relationship with Davis, such as e-mails, a letter, or a contract. Consequently, Joseph has not shown that he is likely to prevail on the merits of his claim because he has not made a prima facie showing that a contract existed between John and Davis.

Joseph argues that he introduced documents from Davis that demonstrate Davis was actively representing Henrys and Josephs interests in the property.^[6] Again, Henry cites to approximately 150 pages of his appellants appendix to support his assertion; however, the pages are marked as though they are part of a packaged request for judicial notice, but Joseph does not cite to a trial court ruling granting the request for judicial notice. Therefore, we find Josephs argument unpersuasive.

Moreover, to the extent that Joseph could prove a prima facie case for intentional interference with a contractual relationship, his claims are barred by the litigation privilege. As noted ante, the litigation privilege bars all causes of action concerning communications which are connected to judicial proceedings. Joseph has asserted that the Lawyers interfered with Johns and Daviss contractual relationship by speaking to one another about the case, filing an answer, filing a judgment on the pleadings, and moving to dismiss causes of action. The foregoing actions are protected by the litigation privilege. Accordingly, Josephs causes of action are barred.

c) Slander of Title

Joseph contends that he established a prima facie case for slander of title against Ofseyer and Nethery & Ofseyer.

Slander of title occurs when there is an unprivileged publication of a false statement which disparages title to property and causes pecuniary loss. [Citations.] (Stalberg v. Western Title Ins. Co. (1994) 27 Cal.App.4th 925, 929.)

In Josephs supplemental declaration in support of his opposition to the anti-SLAPP motions, he declared that Ofseyer and Nethery & Ofseyer slandered his title to the property by (1) recording a fraudulent Affidavit of Death of Joint Tenant against the property; (2) failing to investigate Antoinettes claim that she held the property in joint tenancy; and (3) executing a lien against the property. In Josephs supplemental declaration, in the section pertaining to his slander of title cause of action, Joseph referred to and quoted from several of the documents included in his trial court request for judicial notice. For example, Joseph cited to one document as (See note 22 Request for Judicial Notice.) Joseph does not cite to the record to show that that the trial court granted his request for judicial notice.

Ofseyer and Nethery & Ofseyer assert that they did not place a lien on the property, rather, they obtained a litigation guarantee for their representation of Antoinette. Ofseyer and Nethery & Ofseyer submitted a variety of documents related to Antoinettes litigation guarantee. The litigation guarantee was issued by First American Title Insurance Company and guaranteed that Antoinette held title to the property and that First American would protect Nethery & Ofseyer from any inaccuracies in the title search.

In sum, Joseph did not establish an unprivileged publication of a false statement by Ofseyer and Nethery & Ofseyer, because Joseph did not produce copies of the allegedly false affidavit or the alleged lien. Accordingly, we conclude that Joseph has not established a prima facie case for slander of title.

3. CONCLUSION

The trial court did not err by granting the anti-SLAPP motions because the Lawyers established that their activities were protected, and Joseph did not establish that he is likely to prevail on his causes of action.

B. DUE PROCESS

Joseph contends that the trial court denied him due process when it (1) refused to allow him to orally present his opposition to the lawyers anti-SLAPP motions; (2) rejected his ex parte application for leave to conduct discovery on shortened time, or alternatively, shortening time for a noticed discovery motion; (3) denied his ex parte application to vacate the anti-SLAPP hearing date and to compel Daviss attendance at a deposition. We disagree.

1. ORAL OPPOSITION

Joseph contends that the trial court denied him due process by refusing to allow him to orally present his opposition to the Lawyers anti-SLAPP motions.

The fundamental requisite of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. [Citation.] (Cordova v. Vons Grocery Co. (1987) 196 Cal.App.3d 1526, 1531.) We review this constitutional issue de novo. (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 433.)

The trial court called the hearing on the Lawyers anti-SLAPP motion on December 29, as scheduled. The Lawyers were present for the hearing, and John appeared via courtcall. The trial court asked if anyone had heard from Joseph, who was not present at the hearing. Warford and RMKs trial attorney said that he had exchanged e-mails with Joseph on December 23 or 24, and expected Joseph to attend the hearing. The trial court gave its tentative ruling and the reasons for the ruling. After the trial court completed its explanation for the tentative ruling, Joseph entered the courtroom.

The trial court excused Josephs lateness and explained that it had tentatively ruled in the Lawyers favor. Joseph said, That is a bad idea. The trial court responded, I am certainly willing to listen to anything you have to say. Joseph told the court that he wanted it to reread the tentative ruling, but the trial court refused, and reminded Joseph that the gist of the ruling was that the anti-SLAPP motions were granted. Joseph then said, So I guess I will start at the beginning. The court told Joseph to [s]tart whe[r]ever you wish.

Joseph told the trial court that the anti-SLAPP hearing was not conducted within the 30-day statutory timeframe. The court explained that the docket conditions required a later hearing date, so the lateness of the hearing was not an issue. The court then asked Joseph, Do you have anything new to add to these pleadings? Joseph again discussed the hearing being scheduled beyond the 30-day statutory deadline. The trial court asked Joseph, Do you want to deal with the substance of the motion? Joseph again argued that the hearing was untimely because it was not scheduled within the 30-day deadline. The court again asked Joseph, Do you want to deal with the substance of the motions?

At that point, Joseph argued that Lawyers Mutual did not have standing to bring the anti-SLAPP motion. Joseph asked the court, Is there a reason why you think they have standing to bring that motion? The court reminded Joseph that the hearing was not an opportunity to question the court, rather, it was an opportunity to argue the motion. The court asked Joseph not to repeat things that [he has] in [his] pleadings. Joseph told the court that it was not clear to him what the court knows is in the pleadings and what isnt in the pleadings. The court responded, Well, I have read the pleadings. So far we havent addressed any new matter, so the court is going to adopt as [its] final ruling the tentative ruling that it previously announced.

Contrary to Josephs position, the record reflects that the trial court gave Joseph ample opportunity to supplement the arguments raised in his opposition papers, despite Josephs late arrival to the hearing; however, Joseph disregarded the trial courts directions. In sum, the record does not reflect a denial of due process.

2. APPLICATION FOR DISCOVERY

Joseph contends that the trial court denied him due process when it rejected his ex parte application for leave to conduct discovery on shortened time or, alternatively, shortening time for a noticed motion.

The filing of an anti-SLAPP motion automatically stays all discovery in the case. However, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted . . . . ( 425.16, subd. (g), italics added.) Because anti-SLAPP motions are typically filed early in the proceedings, before the parties have had an opportunity to conduct much, or any, discovery, appellate courts have cautioned trial courts to protect the due process rights of plaintiffs responding to such motions by exercising their discretion under section 425.16, subdivision (g), liberally, and authorizing reasonable and specified discovery timely petitioned for by a plaintiff . . . , when evidence to establish a prima facie case is reasonably shown to be held, or known, by defendant or its agents and employees. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868.)

We review a trial courts order permitting or refusing discovery under section 425.16, subdivision (g), for an abuse of discretion. (Tuchscher Development Enterprises, Inc. v. San Diego Port Dist. (2003) 106 Cal.App.4th 1219, 1247.) Under this standard the reviewing court will not disturb the trial courts decision unless it has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. [Citation.] (Ibid.) A reasonable exercise of the trial courts discretion under the anti-SLAPP statutes discovery provision ( 425.16, subd. (g)) does not violate a plaintiffs right to due process of law. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co., supra, 37 Cal.App.4th at p. 867.) On the other hand, a plaintiffs due process rights are implicated by an arbitrary or capricious denial of discovery needed to oppose an anti-SLAPP motion. (Id. at pp. 867-868.)

An applicant for ex parte relief must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte. (Cal. Rules of Court, rule 3.1202(c).) Like a noticed motion, a trial courts ruling on an ex parte application for discovery is reviewed for an abuse of discretion. (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1061.)

The trial courts ruling reflects that it denied Josephs application because Joseph did not satisfy the requirements for ex parte relief. In a declaration attached to the application, Joseph declared that he needed to conduct discovery to establish his prima facie case against the Lawyers. Joseph also declared that he expected to discover admissions and documents proving that the Lawyers colluded to prevent Davis from properly representing Johns and Josephs interests. Josephs third amended cross-complaint was filed on September 16, 2008. The first anti-SLAPP motion was filed on September 19, 2008. Joseph filed his ex parte application on October 14, 2008.

Instead of acting diligently to initiate discovery, Joseph waited approximately one month after the first anti-SLAPP motion was filed to apply, ex parte, for an order allowing him to take discovery on shortened time, or shortening time for a noticed motion. Joseph does not explain why he waited one month to begin the discovery process, e.g., he was surprised by the swiftness of the anti-SLAPP motion procedure, or he suffered a medical emergency. Further, the declaration does not explain the immediate danger or irreparable harm that would be suffered by Joseph, e.g., the Lawyers would dispose of evidence. Moreover, we note that the anti-SLAPP statute specifically provides that a request to conduct discovery must be made by noticed motion. ( 425.16, subd. (g); see also Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1286 [trial court would have been derelict in its duty if it did not follow the directions of the discovery statute].) Consequently, we conclude that the trial court did not abuse its discretion, or deny Joseph due process, by denying his ex parte application for leave to conduct discovery on shortened time or, alternatively, shortening time for a noticed motion, because the trial court reasonably concluded that Joseph did not satisfy the requirements for ex parte relief.

Joseph argues that the trial court erred because he established good cause for conducting discovery. Josephs contention focuses on the test applicable to a noticed motion for discovery. ( 425.16, subd. (g); Contemporary Services Corp. v. Staff Pro Inc., supra,152 Cal.App.4th at p. 1061.) When the trial court denied Josephs ex parte application, it told him that he would be required to file a formal noticed motion if [he] want[ed] these matters to be heard. Accordingly, Josephs argument fails to address the trial courts reason for denying his application, i.e., Joseph did not meet the requirements for ex parte relief. Therefore, we find Josephs argument unpersuasive.

3. APPLICATION TO COMPEL TESTIMONY

Joseph contends that the trial court erred by denying his ex parte application to vacate the anti-SLAPP hearing date and to compel Daviss attendance at a deposition.

On November 12, 2008, Joseph filed an ex parte application to (1) vacate the November 18, 2008, hearing on the anti-SLAPP motions, and (2) compel Davis to appear for a deposition and produce documents. In a declaration attached to the application, Joseph declared that he served Davis with a notice to appear at a deposition, scheduled for November 7, 2008, and to produce documents; however, Davis did not appear or produce documents. In his declaration, Joseph argued that the statutory stay of discovery proceedings applied only to the cross-defendants who filed anti-SLAPP motions, and since Davis did not file such a motion, discovery was not stayed as to her. Joseph declared that it would be impossible for him to receive a fair hearing on the anti-SLAPP motions without Daviss testimony and documents.

The trial court denied Josephs ex parte application, because all discovery in the matter, even discovery related to a cross-defendant that did not file an anti-SLAPP motion was stayed when the Lawyers filed their anti-SLAPP motions. ( 425.16, subd. (g).) However, due to the multitude of motions that had been filed in the casethe trial court cited at least 17 pending motionsthe trial court continued the date of the hearing on the anti-SLAPP motions to December 29, 2008.

The standard of review generally applicable to discovery motions, and in particular motions to compel discovery, is abuse of discretion. (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1123.) However, where the propriety of a discovery order turns on statutory interpretation, an appellate court may determine the issue de novo as a question of law. [Citation.] (Ibid.) The trial courts denial of Josephs motion was based upon an interpretation of the anti-SLAPP statute. Accordingly, we apply the de novo standard of review.

The anti-SLAPP statute provides: All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision. ( 425.16, subd. (g).)

The purpose of the anti-SLAPP statute is to, at an early stage in the litigation, dispose of meritless lawsuits that seek to chill the valid exercise of constitutional rights, in order to prevent the plaintiff from depleting the defendants energy and resources. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) The statutory provision staying discovery, while an anti-SLAPP motion is pending, serves to effectuate the foregoing legislative intent of preventing meritless SLAPP suits from costing defendants great amounts of time and money. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 65.) If a plaintiff were allowed to proceed with discovery related to defendants that did not file anti-SLAPP motions, then the purpose of the anti-SLAPP statute would be defeated, because the defendants that did file anti-SLAPP motions would likely need to attend the depositions of the defendants who did not file anti-SLAPP motions, in order to preserve their objections. (See, e.g.,  2025.460, subd. (a) [claim of privilege is waived unless a specific objection is made during the deposition].) Further, the plain language of the anti-SLAPP statute reflects that [a]ll discovery proceedings in the action shall be stayed; there is nothing limiting the stay to parties who filed anti-SLAPP motions, or exempting parties who did not file anti-SLAPP motions. ( 425.16, subd. (g).) In sum, it appears from the plain language of the statute and from the purpose of the statute that the stay of discovery proceedings is applicable to all parties, not just the parties involved in the anti-SLAPP motion. Accordingly, we conclude that the trial court did not err.

Joseph contends that the trial court denied him due process because he was entitled to discovery pursuant to section 2025.280. The foregoing code section provides that a party to an action is required to attend a deposition and testify, upon proper notice. ( 2025.280.) Josephs argument does not persuade us that the trial court erred in its interpretation of section 425.16, subdivision (g).

C. STANDING

Joseph contends that the Lawyers did not have standing to bring anti-SLAPP motions against his complaint. We disagree.

We independently review Josephs contention concerning standing. (Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1217.)

The anti-SLAPP statute reads in relevant part, a prevailing defendant on a special motion to strike. ( 425.16, subd. (c).) Based upon this statutory language, it can be reasonably inferred that defendants have standing to bring anti-SLAPP motions. The anti-SLAPP statute also reflects that the term defendant includes cross-defendant. ( 425.16, subd. (h).) The Lawyers were named as cross-defendants in Josephs complaint; therefore they had standing to bring their anti-SLAPP motions.

Joseph asserts that the Lawyers do not have standing to bring anti-SLAPP motions, because Joseph did not previously sue them, and therefore Josephs current lawsuit cannot qualify as retaliat[ion] against them for petitioning activities. Contrary to Josephs position, an attorney may bring a special motion to strike a cause of action arising from petitioning activity undertaken on behalf of the attorneys client. (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1262, fn. 6.) Josephs current lawsuit related to (1) Lawyers Mutual retaining Warford and RMK to represent Davis in Antoinettes malpractice lawsuit; and (2) Ofseyer and Nethery & Ofseyers representation of Antoinette in her lawsuit related to the property. Accordingly, the Lawyers can properly move for anti-SLAPP protection based upon the argument that Joseph is retaliating against them for their actions related to Antoinettes lawsuit.

D. JURISDICTION

1. HEARING ON THE MOTIONS

Joseph contends that the trial court lacked jurisdiction to rule upon the Lawyers anti-SLAPP motions because the hearings were conducted more than 30 days after motions were served. We disagree.

The anti-SLAPP statute provides: The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing. ( 425.16, subd. (f).) The 30-day timeframe in the anti-SLAPP statute is not jurisdictional in the fundamental sense of subject matter jurisdiction or personal jurisdiction. Instead, it is jurisdictional in the sense that it deprives the court of power to act except in a particular manner, i.e., an untimely hearing on an anti-SLAPP motion may cause the motion to be denied by operation of law. (SanRamonValley Fire Protection Dist. v. ContraCostaCounty Empoyees Retirement Assn. (2004) 125 Cal.App.4th 343, 351.)

The issue of whether the trial court acted in excess of its jurisdiction is a question of law that is subject to our independent review. (Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 485.)

Joseph applied ex parte to vacate the November 18, 2008 hearing date for the Lawyers anti-SLAPP motions. The trial court denied Josephs ex parte application; however, the court continued the hearing on the motions to December 29. When changing the date, the trial court said, And the reason why Im doing that is on this case Ive been advised on November 18th, 2008, there are 13 motions set on this case. Additionally, the court said, On December 30th I understand there are two demurrers and a motion to strike [the] cross-complaint pending that will be heard on that date as well aswell, all those motions will be heard on that date. The trial court explained, And why Ive set them on those dates, because I checked my calendar and those dates are relatively clear. So Ill have time to spend on this case.

The trial court explained that there were 13 motions pending in this action, and that it needed the extra time with the case materials to provide the parties with a full and fair hearing. We have no reason to believe that the trial court misrepresented the condition of its docket. Accordingly, we conclude that the trial court properly scheduled the motion hearing beyond the 30-day timeframe because the docket conditions of the court required a later hearing. ( 425.16, subd. (f).)

Joseph contends that the November 18 hearing date was specially reserved for the hearing on the anti-SLAPP motions, and therefore the docket was clear for the hearing on that date. The trial court explained that there were 13 motions pending in this action all scheduled for November 18. The trial courts explanation that the docket was too full for the anti-SLAPP motions to be fully and fairly heard that same day is reasonable. Accordingly, we do not find Josephs argument persuasive.

Joseph asserts that the reporter erred when she transcribed the courts comment that 13 motions were pending for November 18. Joseph asserts that the court actually said, there are too many motions pending in this case, but the reporter mistakenly transcribed the comment as, there are 13 motions set on this case. Contrary to Josephs position, the register of actions reflects that the following motions were scheduled to be heard on November 18: (1) Warford and RMKs motion re: demurrer to Johns first amended cross-complaint; (2) Warford and RMKs motion to strike Johns first amended cross-complaint; (3) Warford and RMKs motion re: demurrer to Josephs third amended cross-complaint; (4) Warford and RMKs special motion to strike Josephs third amended cross-complaint; (5) Warford and RMKs motion to strike portions of Josephs third amended cross-complaint; (6) Daviss special motion to strike Johns first amended complaint; (7) Ofseyer and Nethery & Ofseyers special motion to strike Josephs third amended complaint; (8) Ofseyer and Nethery & Ofseyers special motion to strike Johns first amended complaint; (9) Lawyers Mutuals special motion to strike Johns first amended complaint; (10) Lawyers Mutuals special motion to strike Josephs third amended complaint; (11) Josephs ex parte application for leave to file a memorandum of points and authorities for a hearing scheduled November 20. Based upon our review of the register of actions, we are not persuaded that the reporter incorrectly transcribed the trial courts statements. (See generally People v. Malabag (1997) 51 Cal.App.4th 1419, 1422 [circumstances of an individual case determine whether a clerks transcript or reporters transcript controls, if a record is contradictory].) Therefore, we find Josephs argument unpersuasive.

2. JUDGES

Joseph contends that Judge Sachs acted in excess of his jurisdiction when he vacated the November 18 hearing date reserved by Judge Garza. We note that Josephs argument is specious since he applied ex parte for the November 18 hearing date to be vacated; however, we will address his contention.

Nothing in the anti-SLAPP statute provides that all hearings pertaining to the motion must be heard by the same judge. ( 425.16.) On October 16, 2008, Judge Garza told the parties, [I]t will be Judge Sachs ruling on the anti-SLAPP motion at that time. So the parties will need to get Judge Sachs up to speed on all of the affairs that have been going on in this case and let him know. Judge Garza explained that Judge Sachs would be physically in this department in this seat. He will be hearing all of the matters that are presently on this calendar. Joseph did not raise an objection. Based upon our review of the relevant statute and the record, we conclude that Judge Sachs did not exceed his authority by continuing the anti-SLAPP hearing to December 29, because there is nothing indicating that continuing the hearing d