Palacio Del Mar HOA v. McMahon

Filed 8/24/06 Palacio Del Mar HOA v. McMahon CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from orders of the Superior Court of Orange County, James M. Brooks, Judge. Affirmed and remanded with directions.

Arnold A. McMahon, in pro. per., for Defendant and Appellant.

Peters & Freedman and Michael G. Kim for Plaintiff and Respondent.

* * *

Defendant Arnold A. McMahon (McMahon) appeals from orders denying his special motion to strike the complaint of Palacio Del Mar Homeowners Association, Inc. (Palacio) under Code of Civil Procedure section 425.16 (the anti-SLAPP[1] statute) and granting Palacio's request for sanctions under the same statute.[2]

Finding no reversible error, we affirm the order denying McMahon's anti-SLAPP motion and the order granting Palacio's request for sanctions. Palacio has requested sanctions on appeal under California Rules of Court, rule 27(e) and has also asked to recover its attorney fees and costs under section 425.16, if it prevails on appeal. As discussed more fully, post, sanctions are appropriate under both authorities, but no double recovery can be allowed, thus we will make a single award of attorney fees and costs on appeal to Palacio, in an amount to be determined by the trial court on remand.

FACTS

In 2001, Palacio filed a complaint against McMahon and others for avoidance of fraudulent transfer, pursuant to the Uniform Fraudulent Transfer Act (UFTA, Civ. Code, § 3439 et seq.) The complaint alleges McMahon wrongfully transferred his ownership of and title to three separate properties with the intent of defrauding Palacio, a judgment creditor in a 1998 covenants, conditions, and restrictions (CC&R's) enforcement action against McMahon. The UFTA suit was stayed pending the finality of our decision affirming the judgment in the enforcement action. (Palacio Del Mar Homeowners Association, Inc. v. McMahon (Mar. 17, 2004, G028742) [nonpub. opn.].)

On August 16, 2004, activity resumed in the instant action when Palacio filed its first amended UFTA complaint without substantive changes to the original allegations. Inter alia, Palacio sought to enjoin the transfers and recover general, special, and punitive damages, interest at the maximum legal rate, and costs and expenses of suit, including attorney fees. McMahon's resistance to Palacio's attempts to obtain discovery through deposition prompted the court to issue a contempt order against McMahon, which we vacated as procedurally infirm in McMahon v. Superior Court (May 31, 2005, G034741) [nonpub. opn.].)[3]

McMahon answered the first amended complaint on January 3, 2005, generally denying all allegations and asserting certain affirmative defenses, including that â€