Smith v. Elliot CA1/5

Filed 1/30/15 Smith v. Elliot CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

STEVE SMITH et al.,
Plaintiffs and Appellants,
A139488
v.
JAMES MARSHALL ELLIOT et al., (San Mateo County
Super. Ct. No. CIV 520542)
Defendants and Respondents.

Steve and Anna Smith filed a tort action against James Marshall Elliot and Café
Real Estate,1 alleging they had been injured by false complaints Elliot made to various
government agencies about the Smiths and their business, Smith Trucks and Equipment
(Smith Trucks). Defendants filed a special motion to strike under Code of Civil
Procedure section 425.16, contending the Smiths’ complaint arose out of Elliot’s acts in
furtherance of his right of petition or free speech.
The Smiths opposed the motion based upon a single argument. They claimed an
earlier judgment against Elliot collaterally estopped him from arguing his complaints
were privileged. The Smiths failed to provide the trial court with copies of the record in
the prior proceeding, however, and the court denied the Smiths’ request for judicial
notice of that record. It then granted defendants’ special motion to strike, finding (1)

1
We will refer to Steve and Anna Smith as “the Smiths” save when they must be treated
individually. Similarly, we will refer to the named defendants in the Smiths’ action,
Elliot and Café Real Estate “dba DELMAR PROPERTIES,” as “defendants” unless the
context requires they be identified individually.

1
defendants had shown the Smiths’ claims arose from conduct in furtherance of the right
to petition or free speech and (2) the Smiths had failed to establish a probability of
prevailing on the merits of their claims. The Smiths appeal from that order.
We conclude the trial court correctly determined defendants met their burden of
showing the Smiths’ claims arose from protected activity, because the Smiths did not
establish that collateral estoppel should apply. In addition, as the preclusive effect of the
former judgment was the sole basis upon which the Smiths grounded their showing of
probable success on the merits, their failure to demonstrate the existence of the elements
of collateral estoppel is fatal to their claims. Accordingly, we will affirm the order from
which the appeal is taken.
FACTUAL AND PROCEDURAL BACKGROUND
The action out of which this appeal arises began in March 2013, when the Smiths
filed a complaint against Elliot, Café Real Estate (doing business as Delmar Properties),
and numerous Doe defendants. The basis for the current action was Elliot’s alleged
misconduct in connection with an earlier lawsuit the Smiths had filed against Delmar
Properties. The parties to this appeal have been involved in at least four different actions
in San Mateo County Superior Court. Since the procedural history of these actions bears
on the issues before us, we set it forth below.
The Smith v. Delmar Action
Elliot and his wife, Carole Delmar, are real estate brokers and co-owners of
Delmar Properties. The complaint in the current action alleges that Smith Trucks used
Delmar Properties’ real estate brokerage services in acquiring lots on which Smith Trucks
stored commercial vehicles. The Smiths asserted that in 2007, they had been involved in
a proposed trade transaction for the acquisition of real property contiguous to their
warehouse in Princeton-by-the-Sea, California. Claiming they had been damaged by
Delmar Properties’ tortious mishandling of the transaction, the Smiths sued Delmar

2
Properties, Carole Delmar, and Elliot in an action entitled Smith v. Delmar, et al. (Super.
Ct. San Mateo County, 2009, No. 490011)) (Smith v. Delmar).2
The Restraining Order Action
According to the complaint in the current action, at some time in early 2010, after
Elliot was served with process in Smith v. Delmar, he began to make a series of false,
malicious, and unsupported complaints about the Smiths’ business to various government
agencies. Because of these actions, in March 2012, Anna Smith filed an action
requesting a civil harassment restraining order against Elliot. 3 She alleged Elliot was
driving by the Smiths’ place of business on a continual basis, filming and photographing
the Smiths, and then contacting numerous state and county agencies. Elliot was allegedly
making false reports to the agencies, none of which found any wrongdoing on the part of
the Smiths. Anna Smith was the only plaintiff in the restraining order action, but she also
requested protection for her husband. Elliot was the only defendant.
On April 5, 2012, Judge Gerald J. Buchwald held a hearing on Anna Smith’s
request for a restraining order. The next day, Judge Buchwald entered a civil harassment
restraining order (Judicial Council Form No. CH-130) prohibiting Elliot from contacting
or harassing the Smiths and from interfering with their business (the Restraining Order).
The Restraining Order also prohibited Elliot from making complaints about the Smiths or
Smith Trucks to any government agency, except in case of a “dire and imminent

2
The record in this appeal does not contain any of the pleadings or other documents from
the Smith v. Delmar action. We base our description of it largely on the Smiths’
complaint in the current action. In their opening brief, the Smiths represent that the Smith
v. Delmar action was scheduled for trial in September 2014.
In the court below, defendants stated that the Smiths had filed a second,
unsuccessful harassment case against Carole Delmar. According to defendants, that
action, entitled Anna Maria Smith, Steve Smith v. Carole Delmar (Super. Ct. San Mateo
County, 2012, No. CIV 515837), involved claims by the Smiths that Carole Delmar had
stalked them. Defendants represented that the matter had been dismissed on December 7,
2012, after a full hearing. The record in this appeal contains no documents relating to
this last action.
3
The action was entitled Anna Maria Smith v. James Marshall Elliot (Super. Ct., San
Mateo County, 2012, No. 512532).

3
[e]mergency.” In a handwritten finding, the court noted Elliot had made approximately
10 unfounded complaints to public agencies for the purpose of intimidating the Smiths in
the Smith v. Delmar lawsuit. In a footnote, the court ruled the reports were not privileged
under Civil Code section 47, subdivision (b) because there was “clear and convincing
evidence that they were made to intimidate the Smiths as parties in other pending
litigation.”
No party appealed from the grant of the Restraining Order, and the judgment in
that case is now final.
The Current Action
The Smiths filed the current action in March 2013. The action was assigned San
Mateo County Superior Court No. CIV 520542. The Smiths complaint alleged that the
judgment in the restraining order action constituted a final order determining that Elliot’s
conduct in connection with the Smith v. Delmar action was unlawful. The complaint also
asserted that Elliot’s actions, including the complaints he made to government agencies,
were made in his capacity as an officer and agent of Café Real Estate and as a
representative of Delmar Properties. Elliot’s allegedly false and unwarranted complaints
formed the factual basis for claims of trade libel, slander of title, defamation, intentional
infliction of emotional distress, and fraud. Relying on Judge Buchwald’s findings in the
restraining order case, the Smiths alleged Elliot’s actions were unprivileged.
The Motion to Strike
Elliot and Café Real Estate responded to the Smiths’ complaint by filing a special
motion to strike under Code of Civil Procedure section 425.16 (section 425.16).
Defendants argued Elliot’s communications with the government agencies were acts “in
furtherance of [the] right of petition or free speech under the United States Constitution
or the California Constitution in connection with a public issue[.]” (Code Civ. Proc.,
§ 425.16, subd. (b)(1).) Defendants noted that all five causes of action in the complaint
rested on Elliot’s allegedly false reports to government agencies, and they contended

4
those reports were conduct described in subdivision (e) of section 425.16.4 The
defendants also argued Elliot’s reports were absolutely privileged under Civil Code
section 47, subdivision (b)(3), which provides that “[a] privileged publication . . . is one
made: [¶] in any other official proceeding authorized by law[.]” In addition, defendants
contended the Smiths could not establish a probability they would prevail on their various
causes of action. (See § 425.16, subd. (b)(1) [causes of action arising from protected acts
subject to 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”].)
Defendants argued that each count of the Smiths’ complaint failed to satisfy one or more
of the elements of the tort causes of action alleged.
The motion to strike also pointed out that the Smiths had not attached copies of
Elliot’s communications to the agencies and instead relied exclusively on Judge
Buchwald’s findings in the restraining order case. Defendants noted that they reserved
argument on the application of the doctrine of issue preclusion5 because it was the
Smith’s burden to demonstrate it operated to bar defendants from contesting the Smiths’
factual and legal claims.
The Smiths opposed the motion to strike, but their memorandum in support of
their opposition contained only half a page of argument addressing their probability of
prevailing on the merits of their claims. (See § 425.16, subd. (b)(1).) This argument was

4
Under section 425.16, subdivision (e), an “ ‘act in furtherance of a person’s right of
petition or free speech under the United States or California Constitution in connection
with a public issue’ includes: (1) any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official proceeding authorized
by law, (2) any written or oral statement or writing made in connection with an issue
under consideration or review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law, . . . or (4) any other conduct in furtherance of the
exercise of the constitutional right of petition or the constitutional right of free speech in
connection with a public issue or an issue of public interest.”
5
In modern legal parlance, the term “ ‘issue preclusion’ ” refers to one aspect of the
concept of res judicata. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, fn. 3.)
Issue preclusion is often referred to in the case law as “collateral estoppel.” (Ibid.) We
use the term collateral estoppel in this opinion, although the terms may be used
interchangeably.

5
based entirely on the claimed collateral estoppel effect of the Restraining Order. Their
memorandum requested judicial notice of the records in the restraining order action and
in Smith v. Delmar. Counsel for the Smiths filed a declaration in support of the request
for judicial notice and in opposition to the motion to strike. Counsel’s declaration sought
judicial notice of the Smith v. Delmar action and of specified documents from the
restraining order action.6 None of the documents identified in counsel’s declaration were
attached.
In their reply to the Smiths’ opposition, defendants argued collateral estoppel did
not apply, and they specifically noted the Smiths’ request for judicial notice did not
comply with California Rules of Court, rule 3.1306(c). That rule provides: “A party
requesting judicial notice of material under Evidence Code sections 452 or 453 must
provide the court and each party with a copy of the material. If the material is part of a
file in the court in which the matter is being heard, the party must: [¶] (1) Specify in
writing the part of the court file sought to be judicially noticed; and [¶] (2) Make
arrangements with the clerk to have the file in the courtroom at the time of the hearing.”
Defendants correctly observed that “[n]o records or transcript pages [were] submitted
with the Opposition[.]” With their reply, defendants submitted their own request for
judicial notice for documents from the restraining order case, including Judge
Buchwald’s Restraining Order, the transcript of the hearing, Elliot’s response to Anna
Smith’s request for a restraining order, and the transcript of a June 7, 2012 hearing before
Judge Buchwald. 7
At some point prior to the hearing on defendants’ motion to strike, Judge Joseph
C. Scott issued a tentative ruling granting the motion, but that ruling is not part of the

6
The documents for which judicial notice was sought included briefs the parties had filed
in the restraining order action, the Restraining Order itself, briefing filed in connection
with the Smiths’ subsequent motion for attorneys fees and costs, the July 12, 2012 order
granting that motion (the Attorney Fee Order), and “[a]ny transcripts of any of the
proceedings therein.”
7
The record contains no transcript of the June 7, 2012 hearing.

6
record on appeal.8 On June 27, 2013, counsel appeared before Judge Scott for a hearing
on the motion. On the subject of judicial notice, the Smiths’ counsel informed the court
that the file in the restraining order action was “downstairs ready to be picked up if the
Court wants to review that file.” Counsel appears to have contended this satisfied the
requirement that the file be in the courtroom at the time of the hearing. (Cal. Rules of
Court, rule 3.1306(c)(2).)
After hearing argument from the parties, Judge Scott announced he would adopt
his tentative ruling. On July 9, 2013, the trial court filed a written order granting
defendants’ motion to strike and their request for judicial notice. The court denied the
Smiths’ request for judicial notice because they had failed to comply with California
Rules of Court, rule 3.1306. It found defendants had met their burden of showing that all
of the Smiths’ claims were based on protected activity stemming from complaints made
to agencies seeking to initiate investigations of wrongdoing. It then ruled the Smiths had
not met their burden of establishing a probability of prevailing on any of their claims. It
did not expressly rule on the preclusive effect of the Restraining Order. Judgment was
entered in favor of defendants on August 7, 2013.
The Appeal and Request for Judicial Notice
One week later, the Smiths filed their notice of appeal. The notice states the
appeal is taken from the judgment in San Mateo County Superior Court No. CIV 520542.
The same is true of the Smiths’ amended notice of appeal, which was filed on August 18,
2013. Nevertheless, when the Smiths filed their notice of designation of record, they
designated documents from the record in the restraining order action as well as from San
Mateo County Superior Court No. CIV 520542. The clerk of the superior court included
three documents from the restraining order action in the clerk’s transcript for this appeal.
They are a minute order dated April 5, 2012 (the Minute Order), the Restraining Order,
and the Attorney Fee Order.

8
The matter was reassigned to Judge Scott after defendants’ peremptory challenge to
Judge Buchwald was granted.

7
 The Smiths filed their opening brief, and defendants filed a respondents’ brief.
The respondents’ brief contends the Smiths have forfeited any argument that Judge
Scott’s denial of the Smiths’ request for judicial notice was error, because the Smiths
offer no argument on that point in their opening brief. In addition, defendants object to
the inclusion of documents from the restraining order case in the record in this appeal.
After defendants filed their responsive brief, the Smiths filed a motion seeking
judicial notice of the Minute Order and the Attorney Fee Order. The Smiths sought
judicial notice of the latter order in the trial court. They did not request judicial notice of
the Minute Order in the court below.
DISCUSSION
Before proceeding to the merits of this appeal, we must deal with two important
preliminary matters. First, we must determine what materials are properly part of the
record in this case. Second, we must clarify what issues are actually before us.
Resolution of these matters is essential to understanding the scope of this appeal.
I. The Contents of the Record
Turning first to the record, we noted earlier that the Smiths had designated for
inclusion in the record in this appeal materials that were not part of the record in the
action below, but rather were from the separate restraining order case. For reasons not
apparent to us, the superior court clerk included these documents in the clerk’s transcript
for this appeal. “As a general rule, documents not before the trial court cannot be
included as part of the record on appeal and thus must be disregarded as beyond the scope
of appellate review.” (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622,
632 [materials not part of trial court record cannot be included in appellant’s appendix].)
We therefore must disregard both the improperly included documents and statements in
the briefs that rely on them. (Ibid.) Thus, we will not consider either the Minute Order
or the Attorney Fee Order, as neither of those documents was before Judge Scott when he
ruled on defendants’ motion to strike.

8
 Judge Buchwald’s Restraining Order is properly part of the record on appeal,
however. Defendants sought judicial notice of this order in the court below, and Judge
Scott granted their request. We may therefore consider that document.
Perhaps hoping to remedy the deficiencies in the record identified by defendants,
the Smiths have asked us to take judicial notice of the Minute Order and the Attorney Fee
Order. Again, these documents are not from the record in the case below but are part of
the record in the restraining order action. We decline to take judicial notice of the
records from that action, as “[j]udicial notice of the record there would ‘improperly
augment’ the record here.” (People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1.)
Requests for judicial notice should not be used to circumvent ordinary rules of appellate
procedure (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1064), and we
will not allow the Smiths to use the device of judicial notice to evade the rules governing
the record on appeal. Ordinarily, “ ‘[r]eviewing courts . . . do not take judicial notice of
evidence not presented to the trial court’ absent exceptional circumstances.” (Haworth v.
Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.) Here, there are no exceptional
circumstances warranting a departure from this rule. (Ibid.)
If we were to grant the Smiths’ request for judicial notice, we would effectively be
reviewing the correctness of the trial court’s judgment based on matters that were not part
of the record before it. (See Haworth v. Superior Court, supra, 50 Cal.4th at p. 379,
fn. 2.) Thus, the Smiths’ “effort to submit new evidence for our review in the first
instance is improper.” (Hahn v. Diaz-Barba (2011) 194 Cal.App.4th 1177, 1194.) It is
also untimely, as it was not made until after defendants filed their responsive brief. (See
Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 744 [denying
request for judicial notice in reply brief].) For all of these reasons, we deny the request
for judicial notice. (See Brosterhous v. State Bar (1995) 12 Cal.4th 315, 324-325
[declining to take judicial notice of record of related arbitration proceeding for purposes
of establishing res judicata, where party did not request that trial court take judicial notice
of matter].)

9
II. The Issues on Appeal
The Smiths include a statement of issues in their opening brief. Entirely absent
from the stated issues is any argument concerning Judge Scott’s denial of their request for
judicial notice. The Smiths had “the opportunity to frame the issues in this appeal at the
time [they] filed [their] opening brief” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754,
766), and we may take the issues presented in that brief as a reliable indication of their
claims of error. (See Franklin v. Appel (1992) 8 Cal.App.4th 875, 893, fn. 11.) Where
an appealing party limits its argument to particular issues, we may deem all other issues
forfeited. (Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049,
1053-1054 & fn. 4.) “Courts will ordinarily treat the appellant’s failure to raise an issue
in his or her opening brief as a waiver of that challenge.” (Paulus v. Bob Lynch Ford,
Inc. (2006) 139 Cal.App.4th 659, 685 (Paulus).) Because the Smiths did not address
judicial notice in their opening brief, “they have waived the right to assert this issue on
appeal.” (Ritter & Ritter, Inc. Pension & Profit Plan v. The Churchill Condominium
Assn. (2008) 166 Cal.App.4th 103, 129.)
In their request for judicial notice in this court, the Smiths attempt to argue that
Judge Scott erred in denying their request for judicial notice below. We will not permit
the Smiths to make arguments in a request for judicial notice that they failed to make in
their opening brief. Nor will we entertain the arguments on the issue of judicial notice
contained in their reply brief. As we have explained, “[b]asic notions of fairness dictate
that we decline to entertain arguments that a party has chosen to withhold until the filing
of its reply brief, because this deprives the respondent of the opportunity to address them
on appeal.”9 (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 693.)

9
Our conclusion that the Smiths have forfeited the issue of judicial notice does not imply
that their arguments on that score would have merit if we were to reach them. (See
Paulus, supra, 139 Cal.App.4th at p. 685, fn. 24.) “ ‘[T]he decision of the judge not to
take judicial notice will be upheld on appeal unless the reviewing court determines that
the party furnished information to the judge that was so persuasive that no reasonable
judge would have refused to take judicial notice of the matter.’ ” (Willis v. State of
California (1994) 22 Cal.App.4th 287, 291.) The Smiths failed to do so. In the court

10
 We therefore proceed to consider only the issues properly tendered in the Smiths’
opening brief, and we do so on the basis of the record that was before the trial court when
it granted defendants’ motion to strike. According to the Smiths, the “ultimate issue” in
this case is whether Judge Buchwald’s findings in the restraining order action have
preclusive effect in this case. Put another way, the question is whether the Restraining
Order precluded the trial court from finding the Smiths’ claims arose from activity in
furtherance of defendants’ right of petition or free speech. After setting forth our
standard of review, we will turn to that question.
III. Special Motions to Strike and Standard of Review
In ruling on a special motion to strike under section 425.16, courts employ a two-
pronged analysis. Under the first prong, “the party moving to strike a cause of action has
the initial burden to show that the cause of action arises from an act in furtherance of the
moving party’s right of petition or free speech.” (Salma v. Capon (2008) 161
Cal.App.4th 1275, 1283.) If the moving party satisfies the first prong, then under the
second prong, “the burden shifts to the opposing party to demonstrate the probability that
it will prevail on the claim.” (Ibid.)
“An order granting an anti-SLAPP motion to strike is a proper subject for appeal.
[Citations.] We review de novo a trial court’s ruling on a motion to strike under section
425.16 by ‘conducting an independent review of the entire record. [Citations.]’
[Citations.] [¶] Thus, our review is conducted in the same manner as the trial court in
considering an anti-SLAPP motion. In determining whether the defendant[s] . . . ha[ve]
met [their] initial burden of establishing that the [Smiths’] action arises from protected
activity, we consider ‘the pleadings, and supporting and opposing affidavits stating the

below, the Smiths did not provide either the court or defendants with copies of the
materials that were the subject of their request. (Cf. Cal. Rules of Court, rule 3.1306(c)
[“A party requesting judicial notice of material under Evidence Code sections 452 or 453
must provide the court and each party with a copy of the material.”], italics added.) And
they could not satisfy their obligations under the rule merely by giving the trial court the
file number of the restraining order action. (Conservatorship of Bones (1987) 189
Cal.App.3d 1010, 1014, fn. 2.)

11
facts upon which the liability or defense is based.’ [Citations.] The second prong—i.e.,
whether [the Smiths] ha[ve] shown a probability of prevailing on the merits—is
considered under a standard similar to that employed in determining nonsuit, directed
verdict or summary judgment motions.” (Paulus, supra, 139 Cal.App.4th at p. 672.)
The issues in an anti-SLAPP motion are framed by the pleadings. (Paulus, supra,
139 Cal.App.4th at p. 672.) The plaintiffs may not rely solely on their complaint, even if
it is verified. (Id. at pp. 672-673.) Instead, their proof must be based on competent,
admissible evidence. (Ibid.)
IV. The Trial Court Properly Ruled Defendants Had Met Their Burden of Showing the
Smiths’ Claims Arose From Protected Activity.
The trial court concluded defendants had met their burden under the first prong of
the section 425.16 analysis by showing that all of the Smiths’ claims arose from
“protected activity.” (See, e.g., ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th
993, 1009 [reports to government agency seeking initiation of investigation fall with
§ 425.16, subd. (e)].) It then determined the Smiths could not satisfy the second prong of
the analysis, because they had not established a probability of prevailing on their claims.
In opposing defendants’ argument that the claims in the current action arose from
protected activity, the Smiths relied exclusively on the collateral estoppel effect of the
Restraining Order. The trial court made no express ruling on the preclusive effect of that
order.10 Application of collateral estoppel is generally a question of law that we review
de novo, however, and we may decide the matter on the record before us. (See
Conservatorship of Buchenau (2011) 196 Cal.App.4th 1031, 1040 (Buchenau).) Because
we conclude the Smiths failed to establish all the elements of collateral estoppel, we hold
the trial court correctly concluded defendants had satisfied the first prong of the
section 425.16 analysis.

10
We shall assume, without deciding, that a restraining order entered pursuant to Code of
Civil Procedure section 527.6 is a judgment entitled to collateral estoppel effect. (See
Salisbury v. Hickman (E.D. Cal. 2013) 974 F.Supp.2d 1282, 1288-1290 [according
collateral estoppel effect to restraining order].)

12
 A. Elements of Collateral Estoppel and Burden of Proof
“ ‘Collateral estoppel precludes relitigation of issues argued and decided in prior
proceedings.’ [Citation.] The doctrine applies ‘only if several threshold requirements are
fulfilled. First, the issue sought to be precluded from relitigation must be identical to that
decided in a former proceeding. Second, this issue must have been actually litigated in
the former proceeding. Third, it must have been necessarily decided in the former
proceeding. Fourth, the decision in the former proceeding must be final and on the
merits. Finally, the party against whom preclusion is sought must be the same as, or in
privity with, the party to the former proceeding. [Citations.] The party asserting
collateral estoppel bears the burden of establishing these requirements.’ ” (Pacific
Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 943, quoting
Lucido v. Superior Court, supra, 51 Cal.3d at p. 341.)
Where a party seeks to use collateral estoppel offensively, i.e., “to preclude a
defendant from relitigating an issue the defendant previously litigated and lost, the courts
consider whether the party against whom the earlier decision is asserted had a ‘full and
fair’ opportunity to litigate the issue.” (Roos v. Red (2005) 130 Cal.App.4th 870, 880.)
“[T]he offensive use of collateral estoppel ‘is more closely scrutinized than the defensive
use of the doctrine.’ [Citations.]” (Smith v. ExxonMobil Oil Corp. (2007) 153
Cal.App.4th 1407, 1414.)
Because the law does not favor estoppels, the party invoking collateral estoppel
must establish these requirements with certainty. (Kemp Bros. Construction, Inc. v. Titan
Electric Corp. (2007) 146 Cal.App.4th 1474, 1482.) “To determine whether to preclude
relitigation on collateral estoppel grounds, judicial notice may be taken of a prior
judgment and other court records.” (Rodgers v. Sargent Controls & Aerospace (2006)
136 Cal.App.4th 82, 90, fn. omitted.) A party fails to meet its burden of establishing the
elements of collateral estoppel if it does not provide the court with sufficient information
about the nature of the prior proceeding, the parties thereto, or the issues previously
adjudicated. (Buchenau, supra, 196 Cal.App.4th at pp. 1040-1041 [party failed to show
identity of issues or of parties because necessary evidence not included in record on

13
appeal].) If the record is incomplete, and we cannot determine whether one or more of
the elements of collateral estoppel is present, we cannot apply it to the case. (Santa Clara
Valley Transportation Authority v. Rea (2006) 140 Cal.App.4th 1303, 1311-1312 (Rea).)
B. The Elements of Collateral Estoppel Are Lacking in this Case.
Here, the Smiths have not established at least three elements of collateral estoppel.
First, they have failed to show that the parties against whom preclusion is sought in the
current action are the same as the parties to the restraining order action. The latter action
was brought by Anna Smith against Elliot. There were no other parties. In this case,
however, Steve and Anna Smith seek to use that judgment against both Elliot and Café
Real Estate, which was not a party to the restraining order case. (Cf. Salisbury v.
Hickman, supra, 974 F.Supp.2d at p. 1290, fn. 4 [collateral estoppel sought only against
defendant who was party to restraining order action and not against other defendants].)
To apply the judgment against a nonparty to the prior litigation, due process demands that
the nonparty and the actual party be in privity. (Gottlieb v. Kest (2006) 141 Cal.App.4th
110, 150.) To be in privity, the nonparty must have had an identity or community of
interest with, and adequate representation by, the actual party in the prior proceeding.
(Ibid.) The privity determination requires a close examination of the circumstances of
each case. (Id. at pp. 149-150.)
Here, we have almost no information about the relationship between Elliot and
Café Real Estate. In fact, the complaint contains no allegations about the ownership or
corporate status of that company. We glean from the record that Café Real Estate does
business as Delmar Properties, of which Elliot seems to be part owner. We do not know
how many other owners there are or who they may be. In any event, a corporation and its
owners are generally separate legal entities for purposes of collateral estoppel. (Gottlieb
v. Kest, supra, 141 Cal.App.4th at p. 150.) The Smiths make no effort to explain why
Café Real Estate should be bound by the judgment against Elliot, and from the meager
record before us, we cannot determine whether the company had either the opportunity or

14
the incentive to litigate issues that might commonly affect it and Elliot. 11 (See id. at
pp. 151-152.) In the absence of an adequate record, the Smiths have failed to meet their
burden of establishing an identity of parties insofar as Café Real Estate is concerned.
(See Rea, supra, 140 Cal.App.4th at pp. 1311-1312.)
Second, it is not clear that the issues litigated in the two proceedings are identical.
(Pacific Lumber Co. v. State Water Resources Control Bd., supra, 37 Cal.4th at p. 943
[collateral estoppel requires identity of issues].) Both the restraining order action and the
current action involve Elliot’s complaints to government agencies, but the Smiths have
not established that the complaints at issue are the same. Judge Buchwald found Elliot
had made “approximately 10 unfounded complaints to public agencies for the purpose of
intimidating the Smiths[,]” but he did not specify which complaints were unfounded.
The Smiths’ complaint in the current action lists by name 17 agencies to which Elliot is
alleged to have made unfounded complaints, and it notes these were not the only agencies
with which Elliot allegedly communicated. It seems that one of the complaints Judge
Buchwald found improper was made to the San Mateo County Sheriff’s Department,
because he relied specifically on this complaint in explaining his ruling. That agency is
not listed in the Smiths’ complaint, however. The Smiths have not met their burden of
demonstrating with certainty that the issues involved in the two proceedings are identical.
(Kemp Bros. Construction, Inc. v. Titan Electric Corp., supra, 146 Cal.App.4th at
pp. 1483-1484.)

11
In their reply brief, the Smiths argue vaguely that “[r]espondents were not denied a fair
adversary proceeding in which to fully present their defense.” They contend that Elliot
and Carole Delmar, “both principals of the corporate Respondent, were represented by
counsel and testified at the proceeding.” We cannot tell whether this means that Elliot
and Carole Delmar are the sole owners of Café Real Estate. In any event, Anna Smith’s
counsel conceded at the restraining order hearing that Carole Delmar’s conduct was not
at issue and that there was no evidence she was involved at all. Finally, Ms. Delmar’s
appearance as a witness says nothing about whether she had the power to control any
aspect of the defense of the restraining order action. (See Lynch v. Glass (1975) 44
Cal.App.3d 943, 949.)

15
 Third, we cannot say Elliot had a full and fair opportunity to litigate the privilege
issue in the restraining order case. While the Restraining Order states Elliot’s conduct in
making reports to government agencies was not privileged under Civil Code section 47,
subdivision (b), that issue was not raised in either Anna Smith’s request for a restraining
order or in Elliot’s response to her request, the only prehearing papers in the record
before us.12 (See Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1690 [issue is
conclusively determined by first judgment only if it is actually raised by proper pleadings
and treated as issue in case].) We therefore cannot determine whether Elliot had notice
that this issue would be decided at the hearing. Adding to the uncertainty is the fact that
at the hearing on the Restraining Order, Anna Smith’s counsel contended the case was
“not about complaints to public agencies.” Counsel also conceded that Elliot’s reports to
government agencies were a valid exercise of his First Amendment rights. Counsel had
“no quarrel with any of that[.]” “In the absence of a record establishing that the claim
was asserted and that the legal and factual issues therein were fully litigated, we conclude
that the question of [privilege] was not foreclosed by the adverse judgment in the earlier
summary proceeding.” (Vella v. Hudgins (1977) 20 Cal.3d 251, 258.)
V. The Smiths Have Failed to Show a Probability of Prevailing on the Merits of Their
Claims.
The Smiths have failed to meet their burden of establishing the elements of
collateral estoppel. Because the preclusive effect of the Restraining Order was the only
basis for their claim that they had a probability of prevailing on the merits, their failure to
meet this burden necessarily means they cannot satisfy the second prong of the
section 425.16 analysis. (See § 425.16, subd. (b)(1) [cause of action arising from petition
or free speech rights subject to motion to strike “unless the court determines that the
plaintiff has established that there is a probability that the plaintiff will prevail on the

12
At the beginning of the hearing on the Restraining Order, Judge Buchwald stated that
Elliot’s counsel had made a “privilege argument” in his papers, but no such papers are in
the record before us. Moreover, the privilege argument to which the judge referred seems
to have been raised in connection with Elliot’s allegedly inappropriate conduct during a
deposition.

16
claim”].) That is, they have not demonstrated that their complaint is both legally
sufficient and supported by a prima facie showing of facts sufficient to sustain a
judgment in their favor if their evidence were credited. (Paulus, supra, 139 Cal.App.4th
at p. 672.) Thus, the trial court did not err in granting defendants’ special motion to
strike.
DISPOSITION
The order granting defendants’ special motion to strike is affirmed. Defendants
shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

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 _________________________
Jones, P.J.

We concur:

_________________________
Needham, J.

_________________________
Bruiniers, J.

A139488

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