Filed 7/22/13 Jovaag v. Ott CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
JORY A. JOVAAG, H038468
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. CV215896)
v.
DONALD R. OTT et al.,
Defendants and Respondents.
This appeal is one in a series of appeals brought by Jory A. Jovaag related to the
termination of her 29-year purported common-law marriage to Donald R. Ott, and
Ms. Jovaag‟s action against Mr. Ott over the division of the couple‟s jointly held
property.1
The present appeal is of the trial court‟s order granting Mr. Ott and his attorney,
Daniel Jensen‟s special motion to strike (“anti-SLAPP” motion) against Ms. Jovaag, and
dismissing Ms. Jovaag‟s complaint against Mr. Ott and Mr. Jensen. Ms. Jovaag, who is
proceeding in propria perona, asserts on appeal that the trial court erred in granting the
anti-SLAPP motion, because it applied the wrong legal standard under Code of Civil
Procedure section 425.16.
1
Jovaag v. Ott, Santa Clara County Superior Court No. CV119884.
STATEMENT OF THE CASE
The underlying action for division of Ms. Jovaag and Mr. Ott‟s jointly held
property was tried in May 2011. The court ruled in favor of Mr. Ott, and issued an
injunction freezing all of Ms. Jovaag‟s accounts. Ms. Jovaag and Mr. Ott appeared for
further hearing on the matter on May 16, 2011, and entered into a global settlement of all
issues.
On July 20, 2011, a judgment was entered in favor of Mr. Ott. Part of the
judgment required Ms. Jovaag to execute an interspousal transfer deed of trust to real
property.
In January 2012, Ms. Jovaag filed a complaint against Mr. Ott and Mr. Jensen, as
well as Champion Mobile Notary, who notarized the interspousal transfer deed. The
complaint alleged fraud, real estate fraud, deceit and undue influence. The basis of
Ms. Jovaag‟s allegations is her belief that Mr. Ott and Mr. Jensen willfully deceived her,
threatened her with criminal charges, and exerted undue influence over her so that she
would execute the interspousal transfer deed.
On March 16, 2012, Mr. Ott filed an anti-SLAPP motion pursuant to Code of Civil
Procedure section 425.16. 2 Mr. Jensen also filed an anti-SLAPP motion, which the court
granted on May 24, 2012, dismissing Ms. Jovaag‟s complaint. Ms. Jovaag filed a notice
of appeal.
DISCUSSION
On appeal, Ms. Jovaag asserts the court applied the wrong legal standard in
considering Mt. Ott‟s and Mr. Jensen‟s anti-SLAPP motion.
A SLAPP, or Strategic Lawsuit Against Public Participation, is an unsubstantiated
lawsuit arising from the defendant‟s constitutionally protected speech or petitioning
activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 60
2
All unspecified statutory references are to the Code of Civil Procedure.
2
(Equilon).) Section 425.16 was enacted in 1992 to address the “disturbing increase” in
the frequency of these meritless harassing lawsuits. (§ 425.16, subd. (a); Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1126.) It was the Legislature‟s
finding “that it is in the public interest to encourage continued participation in matters of
public significance, and that this participation should not be chilled through abuse of the
judicial process. To this end, this section shall be construed broadly.” (§ 425.16,
subd. (a).) The statute was thus designed to deter meritless actions that “deplete „the
defendant‟s energy‟ and drain „his or her resources‟ [citation], . . . „ “ . . . by ending them
early and without great cost to the SLAPP target” ‟ [citation].” (Varian Medical Systems,
Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
Section 425.16 expressly 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).) In evaluating a motion under the statute the trial court
engages in “a two-step process. First, the court decides whether the defendant has made
a threshold showing that the challenged cause of action is one arising from protected
activity. The moving defendant's burden is to demonstrate that the act or acts of which
the plaintiff complains were taken „in furtherance of the [defendant]‟s right of petition or
free speech under the United States or California Constitution in connection with a public
issue,‟ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a
showing has been made, it then determines whether the plaintiff has demonstrated a
probability of prevailing on the claim.” (Equilon, supra, 29 Cal.4th at p. 67.) “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
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being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
On appeal we review the entire record de novo to decide whether the defendant
has shown that section 425.16 applies and, if so, whether the plaintiff has shown a
probability of prevailing. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993,
999.) “Accordingly, we independently determine whether the challenged cause of action
arose from the defendant‟s exercise of the constitutional right of petition or free speech—
and if so, whether the plaintiff has demonstrated a probability of prevailing on the merits
of the claim.” (Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 573.) We consider
“the pleadings, and supporting and opposing affidavits stating the facts upon which the
liability or defense is based.” (§ 425.16, subd. (b)(2).) “However, we neither „weigh
credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the
evidence favorable to the plaintiff [citation] and evaluate the defendant‟s evidence only to
determine if it has defeated that submitted by the plaintiff as a matter of law.‟ ” (Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3, quoting HMS Capital,
Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
Here, the causes of action Ms. Jovaag asserts in her complaint are related to the
execution of the interspousal transfer deed pursuant to the settlement and judgment in the
underlying action. Specifically, Ms. Jovaag alleges causes of action for fraud, real estate
fraud, deceit and undue influence based on her belief that Mr. Ott and Mr. Jensen
willfully deceived her, threatened her with criminal charges, and exerted undue influence
over her so that she would execute the interspousal transfer deed. Mr. Ott‟s and Mr.
Jensen‟s acts of which Ms. Jovaag complain were taken to vindicate Mr. Ott‟s rights
under the judgment. As such, they were “ „in furtherance of the [defendant]‟s right of
petition or free speech under the United States or California Constitution in connection
with a public issue,‟ as defined in the statute. (§ 425.16, subd. (b)(1).)” (Equilon, supra,
29 Cal.4th at p. 67.)
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Ms. Jovaag mistakenly asserts the anti-SLAPP statute is related only to actions
with a connection to a public issue. On the contrary, the anti-SLAPP protects all petition-
related activity, whether or not they are connected with a public issue. (§ 425.16,
subd. (e).) This, of course, would include Mr. Ott and Mr. Jensen‟s action of securing the
execution of the interspousal transfer deed.
Mr. Ott and Mr. Jensen meet their initial burden of establishing that Ms. Jovaag‟s
claims in the complaint arise from protected activity within the meaning of section
425.16. As a result, we must consider whether Ms. Jovaag has demonstrated a possibility
of prevailing on her claims. (§ 425.16, subd. (b)(1).)
Mr. Ott‟s and Mr. Jensen‟s conduct of securing the interspousal transfer deed was
privileged under the litigation privilege as set forth in Civil Code section 47,
subdivision (b), which protects for a statement made in a judicial proceeding or “in any
other official proceeding authorized by law . . . .” The application of the litigation
privilege prevents Ms. Jovaag from succeeding on her action in the complaint.
Ms. Jovaag incorrectly asserts that the litigation privilege does not apply to
“unlawful conduct,” such as the fraud she alleges Mr. Ott and Mr. Jensen committed.
The question of the lawfulness of Mr. Ott‟s and Mr. Jensen‟s conduct, however, was
directed at the first step of the SLAPP analysis. The privilege remains “relevant to the
second step in the anti-SLAPP analysis in that it may present a substantive defense a
plaintiff must overcome to demonstrate a probability of prevailing.” (Flatley v. Mauro
(2006) 39 Cal.4th 299, 323.) Indeed, the court emphasized that “the question of whether
the defendant‟s underlying conduct was illegal as a matter of law is preliminary, and
unrelated to the second prong question of whether the plaintiff has demonstrated a
probability of prevailing, and the showing required to establish conduct illegal as a matter
of law—either through defendant‟s concession or by uncontroverted and conclusive
evidence—is not the same showing as the plaintiff‟s second prong showing of probability
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of prevailing.” (Id. at p. 320.)
“ „The principal purpose of [the litigation privilege] is to afford litigants and
witnesses [citation] the utmost freedom of access to the courts without fear of being
harassed subsequently by derivative tort actions. [Citations.]‟ [Citation.] In order to
achieve this purpose of curtailing derivative lawsuits, we have given the litigation
privilege a broad interpretation.” (Action Apartment Ass’n, Inc. v. City of Santa Monica
(2007) 41 Cal.4th 1232, 1241, quoting Silberg v. Anderson (1990) 50 Cal.3d 205, 213.)
“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 ha[s] some connection or
logical relation to the action.” (Silberg v. Anderson, supra, 50 Cal.3d at p. 212.)
Here, as we have discussed, the focus of Ms. Jovaag‟s causes of action against
Mr. Ott and Mr. Jensen in her complaint was their conduct associated with securing the
execution of the interspousal transfer deed pursuant to the judgment in the underlying
action. Mr. Ott‟s and Mr. Jensen‟s actions are protected by the litigation privilege, and as
a result, Ms. Jovaag has no chance of success on her claims. Mr. Ott‟s and Mr. Jensen‟s
anti-SLAPP motion, and the dismissal of Ms. Jovaag‟s complaint was proper in this case.
DISPOSITION
The order appealed from is affirmed.
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______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA, J.
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