Filed 4/24/15 Shaw v. Nations Title Co. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
ASLAM SHAW, B251553 consolidated with B252789
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. VC062975)
v.
NATIONS TITLE COMPANY OF
CALIFORNIA et al.,
Defendants and Respondents.
APPEALS from orders of the Superior Court of the County of Los Angeles,
Margaret Bernal, Judge. Dismissed, in part, and affirmed.
Aslam Shaw, in pro. per., for Plaintiff and Appellant.
Callahan, Thompson, Sherman & Caudill, Peter M. Callahan, Danielle H. Mesa,
for Defendants and Respondents Abelrado Fernandez, Esq. and Diefer Law Group, P.C.
Turner Aubert & Friedman, Matthew C. Wolf for Defendants and Respondents
Imran Khaliq and Shahnila Khaliq.
Millar, Hodges & Bemis, Richard W. Millar, Jr., for Defendants and Respondents
Old Republic National Title Insurance Company.
Cunningham & Treadwell, Francis J. Cunningham III, David S. Bartelstone, for
Defendants and Respondents Nations Title Company of California, Dipak Lakhani, WFG
National Title Insurance Company, Williston Financial Group, Golden Gate Capital,
Briget Fodor, Gene Kraft, Melody Bognot, and Corlis Chevalier.
The Law Office of Richard M. Moss III, Richard M. Moss, III, for Defendants and
Respondents Richard M. Moss III and The Law Office of Richard M. Moss III.
INTRODUCTION
Plaintiff and appellant Aslam Shaw (plaintiff) appeals from the trial court’s orders
sustaining the demurrers of certain of the defendants to the first amended complaint with
leave to amend; granting the Code of Civil Procedure section 425.16 (section 425.16)
special motion to strike filed by two other defendants; denying his motion to extend the
time within which to file an amended complaint (motion to extend time); and granting the
ex parte requests of certain of the demurring defendants to dismiss the first amended
complaint for failure to timely amend.1
We dismiss plaintiff’s appeals from the orders sustaining the demurrers with leave
to amend and the order denying plaintiff’s motion to extend time as taken from
nonappealable orders. We also dismiss as untimely plaintiff’s appeal from the order
dismissing the first amended complaint against the Nations Title defendants.
We affirm the trial court’s orders in favor of defendant Old Republic and the
Diefer Law Group defendants dismissing the first amended complaint for failure to
timely amend. And, we affirm the trial court’s order granting the Khaliqs’ special motion
to strike the first amended complaint.
1
The defendants and respondents affected by the orders from which plaintiff
appeals are Nations Title Company of California, Dipak Lakhani, WPG National Title
Insurance Company, Williston Financial Group, Golden Gate Capital, Briget Fodor, Gene
Kraft, Melody Bognot, and Corlis Chevalier (collectively referred to as the Nations Title
defendants); Abelrado Fernandez, Esq. and the Diefer Law Group (collectively referred
to as the Diefer Law Group defendants); Richard Moss III and the Law Office of Richard
Moss III (collectively referred to as the Moss defendants); Old Republic National Title
Insurance Company (Old Republic); and Imran Khaliq and Shanila Khaliq (Khaliqs).
2
PROCEDURAL BACKGROUND
A. Operative Pleading
In March 2013, plaintiff, acting in pro. per., filed a 90-page complaint against
more than 20 named defendants asserting multiple causes of action. Less than a month
later, plaintiff filed a first amended complaint that was almost 200 pages long and added
other defendants.
B. Demurrers
Certain of the defendants filed demurrers to the first amended complaint. On July
9, 2013, the trial court entered an order sustaining, inter alia, the demurrers of defendant
Old Republic; the Diefer Law Group defendants; and the Nations Title defendants. The
trial court granted plaintiff 30 days leave to amend his complaint against those
defendants. On July 18, 2013, the trial court entered an order sustaining the demurrers of
the Moss defendants.2 The trial court’s July 18, 2013, order stated, “Several defendants
demurred and on July 9, 2013, this Court sustained the demurrers and granted plaintiff 30
days leave to amend. Notice was given on July 12, 2013. The Second Amended
Complaint as to all demurring defendants (to date) must be served and filed no later than
August 12, 2013.”
2
On July 30, 2013, the trial court entered an order sustaining with 30 days leave to
amend the separate demurrers filed by defendants Nayyar Afshar and Siddiq Khawaja.
As discussed below, however, plaintiff’s notices of appeal do not refer to that order.
Thus, although Afshar and Khawaja have joined in the respondents brief filed by the
Moss defendants, they do not appear to be parties to this appeal.
3
C. Special Motion to Strike
In addition to filing a demurrer, the Khaliqs filed a special motion to strike the first
amended complaint pursuant to section 425.16. On July 18, 2013, the trial court entered
an order granting the special motion to strike. 3
D. Motion to Extend Time to File Second Amended Complaint
On August 12, 2013—the last day on which to file a second amended complaint—
plaintiff filed instead his motion to extend time that he set for hearing on September 10,
2013. On September 10, 2013, the trial court entered an order denying plaintiff’s motion
to extend time, stating, “On August 12, the day the [second amended complaint] was due,
plaintiff filed the subject motion ‘to extend time to file Second Amended Complaint.’ As
of the time of the subject hearing—September 10, 2013—the [second amended
complaint] is already 29 days overdue. Plaintiff’s request is wholly improper. Time
cannot be extended if it has already expired. Additionally, it does not appear the Court
has authority to extend the time to amend beyond 30 days. See C.C.P. § 1054. Plaintiff
should have submitted an ex parte application, as soon as was practicable, to seek the
requested relief. [¶] It appears from the moving papers that plaintiff’s failure to timely
file his [second amended complaint] was due to some health problems and doctor’s
treatment (for which he has provided proof). Specifically, he claims he ‘fell ill’ late in
the day on Friday, August 9, 2013 and ‘unable to do anything but lay in bed.’
Notwithstanding, as noted by defendants, plaintiff was able to draft this motion while he
was under ‘excruciating pain,’ and have it served and filed by Monday. [¶] Plaintiff also
notes in his motion that he has not previously requested an extension of time to file the
[second amended complaint]. While that is true, on June 27, 2013, the Court granted
plaintiff’s written request to extend the time within he had to serve the summons.
Moreover, as early as July 9, 2013, plaintiff knew he was obligated to amend the
3
The Khaliqs’ demurrer to the first amended complaint was deemed moot by the
trial court following the entry of its order granting their special motion to strike the first
amended complaint.
4
pleading. These types of delays are particularly significant in light of the number of
defendants attempting to defend the action in a timely manner and the specious nature of
the claims, and they cause the unnecessary expenditure of attorney’s fees by 26 other
litigants. Plaintiff’s statement that defendants ‘will not be prejudiced in any way’ is
erroneous. [¶] In his declaration, plaintiff further states that he expected to recover in 2
weeks ‘and thereafter will be able to file my [second amended complaint].’ Shaw decl.,
¶12. His declaration is dated August 12, 2013. The time within which he projected he
would file his untimely pleading has passed. [¶] . . . [¶] Plaintiff’s motion to further
extend the time within which he may file a Second Amended Complaint is DENIED. He
is precluded from filing a [second amended complaint] absent a court order. See Leader
v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 608. [¶] The Leader
court noted that after the expiration of the time period to amend has lapsed, a plaintiff
may only amend by obtaining leave of court. Id. at 613 (citation omitted). Plaintiff must
make the appropriate motion under [Code of Civil Procedure] section 473(a), at which
time the Court will evaluate the merits of the proposed pleading, as well as the other
factors relevant under the statute, to determine whether a [second amended complaint]
should be permitted. See, e.g., Harlan v. Dept. of Transportation (2005) 132 Cal.App.4th
868 (vesting the trial court with discretion to require a motion where a permitted
amendment is not timely filed); Yee v. Mobilehome Park Rental Review Bd. (1998) 62
Cal.App.4th 1409, 1429 (finding no error where motion to amend was denied because the
proposed pleading fails to state a cause of action due to res judicata principles). [¶] Until
such motion is brought, the action is subject to dismissal under Code of Civil Procedure
section 581[, subdivision] (f)(2).”
5
E. First Notice of Appeal (Case No. 251553)
On September 11, 2013, plaintiff filed a notice of appeal from the trial court’s
July 9 and 18, 2013, rulings4 on the demurrers and the July 18, 2013, ruling on the special
motion to strike, as well as its September 10, 2013, ruling on plaintiff’s motion to extend
the time. That appeal was assigned case no. 251553.
F. Dismissal Orders5
On September 11, 2013, the Nations Title defendants filed an ex parte application
for an order dismissing the first amended complaint against them for failure to amend that
complaint within the time granted by the trial court after it sustained those defendants’
demurrers, which application the trial court granted that same day.6
On September 13, 2013, the Diefer Law Group defendants filed an ex parte
application for an order dismissing the first amended complaint against them for failure
to file an amended complaint within the time granted by the trial court after it sustained
those defendants’ demurrers, which application the trial court granted that same day.
On September 16, 2013, defendant Old Republic filed an ex parte application for
an order dismissing the first amended complaint against it for failure to file a second
amended complaint within the time granted by the trial court after it sustained that
defendant’s demurrer, which application the trial court granted that day.
4
Plaintiff’s notice of appeal did not specifically reference the July 30, 2013, ruling
on the demurrers of defendants Nayyar Afshar and Siddiq Khawaja.
5
It does not appear from the record that the Moss defendants filed an ex parte
application for an order dismissing the first amended complaint against them or that the
trial court entered a final order as to those defendants from which plaintiff could have
appealed. Therefore, we cannot treat plaintiff’s appeal from the July 18, 2013, order
sustaining the Moss defendants’ demurrer with leave to amend as taken from a
subsequently entered dismissed order. (See, e.g., Vibert v. Berger (1966) 64 Cal.2d 65,
67-68.)
6
As explained below, the Nations Title defendants served a notice of entry of the
dismissal order in their favor on September 11, 2013.
6
G. Second Notice of Appeal (Case No. 252789)
On November 14, 2013, plaintiff filed a notice of appeal from the orders
dismissing the first amended complaint dated September 11, 13, and 16, 2013.7 That
appeal was assigned case no. B252789.
DISCUSSION
A. Appealability
1. Case No. B251553
Plaintiff’s September 11, 2013, notice of appeal in case no. 251553 purports to
appeal from: (i) the trial court’s July 9 and 18, 2013, orders sustaining the demurrers of
certain defendants with leave to amend; (ii) the trial court’s July 18, 2013, order granting
the special motion to strike filed by the Khaliqs; and (iii) the trial court’s September 10,
2013, order denying plaintiff’s motion to extend.8
The orders sustaining the demurrers of certain defendants with leave to amend are
nonappealable orders. “[I]t ‘is settled that an order sustaining a demurrer is not
appealable. [Citations.]’ (Evans v. Dabney (1951) 37 Cal.2d 758, 759 [235 P.2d 604].)
‘An appeal does not lie from an order sustaining a demurrer without leave to amend
7
The notice of appeal also references an October 29, 2013, order granting defendant
Nations Financial Group Holdings, Inc.’s motion to vacate the entry of a default, but
plaintiff makes no arguments on appeal concerning that order.
8
Although plaintiff represented himself in the trial court and does so now on
appeal, we note that “[p]ro. per. litigants are held to the same standards as attorneys. (See
Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 [35 Cal.Rptr.2d 669, 884 P.2d 126] [‘A
doctrine generally requiring or permitting exceptional treatment of parties who represent
themselves would lead to a quagmire in the trial courts, and would be unfair to the other
parties to litigation.’]; accord, Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1281
[111 Cal.Rptr.2d 439] (dis. opn. of Bedsworth, J.) [pro pers should not be treated the
same, ‘only different’].)” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536,
543.)
7
[citations], from an order sustaining a demurrer with leave to amend [citation], or from an
order granting a motion for judgment on the pleadings [citation].’ (Singhania v.
Uttarwar (2006) 136 Cal.App.4th 416, 425 [38 Cal.Rptr.3d 861].) Instead, an ‘“order
sustaining a demurrer . . . is generally reviewable on appeal from the final judgment in
the action.” [Citations.]’ (Ibid.)” (Lopez v. Brown (2013) 217 Cal.App.4th 1114, 1133;
see also Lavine v. Jessup (1957) 48 Cal.2d 611, 614 [“An order sustaining a demurrer
without leave to amend is nonappealable, and the appeal must be taken from the ensuing
judgment”].) The direct appeal from the trial court’s July 9 and 18 orders must therefore
be dismissed.
Similarly, the order denying plaintiff’s motion to extend time is an interim or
interlocutory order that is nonappealable. “‘Code of Civil Procedure section 904.1 is
“[t]he principal statute [that] defines the scope of appellate jurisdiction in the Court of
Appeal . . . .” [Citation.] Generally speaking, only final judgments are appealable under
the statute. [Citation.]’ (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60,
75 [70 Cal.Rptr.3d 88].) ‘In keeping with this rule, section 904.1 generally authorizes
appeals from superior court judgments, except those which are interlocutory. ([Code Civ.
Proc.,] § 904.1, subd. (a)(1).)” (In re The Clergy Cases I (2010) 188 Cal.App.4th 1224,
1233; see also Fogel v. Farmers Group, Inc. (2008) 160 Cal.App.4th 1403, 1423 [order
granting leave to amend is not directly appealable; however, it is subject to review on
appeal from the final judgment].) Therefore, plaintiff’s direct appeal from that
September 10, 2013, interim order must also be dismissed.
As explained below, however, because plaintiff subsequently appealed from the
orders in favor of certain defendants dismissing the first amended complaint for failure to
file an amended complaint within the time allowed, he can in that appeal challenge the
propriety of the order denying his motion to extend time as an interim order that
necessarily affects the dismissal orders. “‘[W]hen an appeal is taken pursuant to section
904.1, the reviewing court may review “any intermediate ruling, proceeding, order or
decision which involves the merits or necessarily affects the judgment or order appealed
from or which substantially affects the rights of a party.” ([Code Civ. Proc.,] § 906.)’
8
(Doran v. Magan (1999) 76 Cal.App.4th 1287, 1293 [91 Cal.Rptr.2d 60].)” (In re The
Clergy Cases I, supra, 188 Cal.App.4th at pp. 1233-1234.) Accordingly, we address
below the merits of plaintiff’s challenge to the trial court’s order denying his motion to
extend time in connection with his appeal from the dismissal orders, to the extent his
appeal from those orders was timely filed.
As to the Nations Title defendants, however, we conclude that plaintiff’s appeal
from the September 11, 2013, dismissal order in their favor was untimely. The notice of
entry of the September 11, 2013, dismissal order in favor of the Nations Title defendants
was served the next day—September 12, 2013. Under California Rules of Court, rule
8.104(a), a notice of appeal must be filed within 60 days after service of a notice of entry
of the judgment or order appealed from. But plaintiff did not file his notice of appeal
until November 14, 2013, i.e., 63 days from the service of the September 12, 2013, notice
of entry of the dismissal order. We therefore dismiss as untimely the appeal from the
September 11, 2013, dismissal order in favor of the Nations Title defendants.
The order granting the Khaliqs’ special motion to strike is an appealable order
pursuant to section 425.16, subdivision (i). “An order granting a special motion to strike
under section 425.16 is directly appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).)”
(Chodos v. Cole (2012) 210 Cal.App.4th 692, 698.) Therefore, we will address the merits
of the appeal from that order.
2. Case No. 252789
Plaintiff’s notice of appeal in case no. 252789 appeals from the trial court’s order
dismissing his first amended complaint as to certain defendants based on his failure to file
an amended complaint within the time allowed by the trial court. Although those orders
are final, appealable orders, plaintiff’s appeal does address the merits of the underlying
orders sustaining the demurrers of the respective defendants. Instead, plaintiff’s appeal is
limited to the propriety of the trial court’s order denying his motion to extend time, which
order, as discussed above, is reviewable based on the appeal from the final judgments of
dismissal.
9
B. Dismissal Orders Following Failure to Timely Amend
Plaintiff contends that the trial court abused its discretion when it denied his
motion to extend time and instead entered dismissal orders in favor of certain defendants.
According to plaintiff, the evidence concerning his health issues that he submitted in
support of his motion to extend time provided good cause to extend the time within
which he could file a second amended complaint.
A plaintiff’s failure to file an amended complaint within the time specified by the
trial court after a demurrer is sustained with leave to amend subjects the action to
dismissal “in the court’s discretion under [Code of Civil Procedure] section 581,
subdivision (f)(2).” (Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th
at p. 613) “The decision to dismiss an action under [Code of Civil Procedure] section
581, subdivision (f)(2) rests in the sound discretion of the trial court and a reviewing
court will not disturb the ruling unless the trial court has abused its discretion. [Citation.]
It is appellant’s burden to establish an abuse of discretion. [Citation.]” (Gitmed v.
General Motors Corp. (1994) 26 Cal.App.4th 824, 827.) “Discretion is abused only
when in its exercise, the trial court ‘exceeds the bounds of reason, all of the
circumstances before it being considered.’ [Citation.] There must be a showing of a
clear case of abuse and miscarriage of justice in order to warrant a reversal. [Citation].
A trial court will abuse its discretion by action that is arbitrary or ‘“that transgresses the
confines of the applicable principles of law.”’ [Citations.]” (Shaw v. County of Santa
Cruz (2008) 170 Cal.App.4th 229, 281.)
As noted above, the trial court denied plaintiff’s motion to extend time and instead
entered the dismissal orders because, at the time the court ruled on the motion to extend
time, the time within which plaintiff could have amended his complaint had expired.9
Thus, the trial court concluded that plaintiff was required to file a motion for relief from
9
Our analysis of plaintiff’s claim that the trial court abused its discretion when it
denied his motion to extend time is limited to the trial court’s written order on that
motion because plaintiff did not include in the record a reporter’s transcript of the hearing
on that motion.
10
default pursuant to Code of Civil Procedure section 473, subdivision (a) so that the court
could “evaluate the merits of the proposed pleading, as well as the other factors relevant
under the statute, to determine whether a [second amended complaint] should be
considered.”
We conclude that the trial court did not act arbitrarily when it determined that
because the time to amend plaintiff’s pleading had lapsed well prior to the hearing on his
request to extend that time, plaintiff was required to file an appropriate motion to be
relieved from that default under the authority of Code of Civil Procedure section 473,
subdivision (a) prior to extending the time within which plaintiff could amend. (See e.g.,
Leader v. Health Industries of America, Inc., supra, 89 Cal.App.4th at p. 613.) Because
plaintiff did not make such a motion, the trial court did not abuse its discretion by
denying the motion to extend time and granting the ex parte applications of certain of the
demurring defendants to dismiss the first amended complaint under Code of Civil
Procedure section 581, subdivision (f)(2). Those dismissal orders are therefore affirmed.
C. Order Granting Special Motion to Strike
1. Section 425.16 and Standard of Review
“Section 425.16 provides that a cause of action arising from a defendant’s conduct
in furtherance of constitutionally protected rights of free speech or petitioning may be
stricken unless the plaintiff has a probability of prevailing on the merits. (§ 425.16, subd.
(b)(1).) In ruling on a special motion to strike under section 425.16, the trial court
employs a two-prong analysis. Initially, the trial court determines ‘“whether the
defendant has made a threshold showing that the challenged cause of action is one arising
from protected activity. . . . 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.” [Citation.]’ (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733 3
Cal.Rptr. 636, 74 P.3d 737].) [¶] To satisfy the second prong—the probability of
prevailing—the plaintiff must demonstrate that the complaint is legally sufficient and
11
supported by a prima facie showing of facts to support a favorable judgment if the
evidence submitted by the plaintiff is accepted. The trial court considers the pleadings
and evidentiary submissions of both the plaintiff and the defendant. Although ‘“the court
does not weigh the credibility or comparative probative strength of competing evidence,
it should grant the motion if, as a matter of law, the defendant’s evidence supporting the
motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.
[Citation.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [123
Cal.Rptr.2d 19, 50 P.3d 733], superseded by statute on other grounds as noted in Hutton
v. Hafif (2007) 150 Cal.App.4th 527, 547 [59 Cal.Rptr.3d 109].)’ (Cole v. Patricia A.
Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1104-1105 [142 Cal.Rptr.3d
646] (Cole).) The standard for determining the merits of a defendant’s special motion to
strike a complaint is similar to that for determining the merits of a defendant’s motion for
summary judgment. ‘Both seek to determine whether a prima facie case has been
presented by the plaintiff in opposing the motions.’ (Bergman v. Drum (2005) 129
Cal.App.4th 11, 18 [28 Cal.Rptr.3d 112]; see Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2014) ¶ 7:1008, p. 7(II)-57 [‘The “probability
of prevailing” is tested by the same standard governing a motion for summary judgment,
nonsuit, or directed verdict’].) If a plaintiff sets forth a prima facie case in opposition to
such motions, the motions must be denied.” (Kenne v. Stennis (2014) 230 Cal.App.4th
953, 962-963.)
“‘We review an order granting an anti-SLAPP motion de novo, applying the same
two-step procedure as the trial court. (Alpha & Omega Development, LP v. Whillock
Contracting, Inc. (2011) 200 Cal.App.4th 656, 663 [132 Cal.Rptr.3d 781].) We look at
the pleadings and declarations, accepting as true the evidence that favors the plaintiff and
evaluating the defendant’s evidence “‘only to determine if it has defeated that submitted
by the plaintiff as a matter of law.’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 269, fn. 3 [46 Cal.Rptr.3d 638, 139 P.3d 30] (Soukup).) The
plaintiff’s cause of action needs to have only ‘“minimal merit’ [citation]” to survive an
12
anti-SLAPP motion. (Id. at p. 291.)’ (Cole, supra, 206 Cal.App.4th at p. 1105.)” (Kenne
v. Stennis, supra, 230 Cal.App.4th at pp. 962-963.)
2. Protected Activity
In ruling on the Khaliqs’ special motion to strike under section 425.16, the trial
court concluded that, “As this Court noted in its prior ruling on co-defendants’ demurrers,
the pleading is largely unintelligible. The underlying facts are not clearly alleged. In its
review of the [first amended complaint], it appears that each of the claims against the
Khaliqs arise from a stipulated judgment entered into by the parties in an underlying
Orange County action (case number 07CC03543) in favor of the Khaliqs and against
plaintiff Shaw. See Request for Judicial Notice, Exh. B, D. Plaintiff’s allegations relate
to the entry of judgment, and defendants’ subsequent collection activities and are
protected under the anti-SLAPP statute. See Rusheen v. Cohen (2006) 37 Cal.4th 1048.
Plaintiff’s [first amended complaint] arises from conduct related to defendants’ right to
petition and thus defendants have met their initial burden on the motion. See also Briggs
v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106.”
In describing the first prong of the section 425.16 analysis, “[w]e have said,
‘Section 425.16 defines an “act of that person in furtherance of the person’s right of
petition or free speech under the United States or California Constitution in connection
with a public issue,” . . . as including statements or writings made before a judicial
proceeding or made in connection with an issue under consideration or review by a
judicial body. (§ 425.16, subd. (b)(1); see id., subd. (e).) Thus, statements, writings and
pleadings in connection with civil litigation are covered by the anti-SLAPP statute, and
that statute does not require any showing that the litigated matter concerns a matter of
public interest. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1115 [81 Cal.Rptr.2d 471, 969 P.2d 564] (Briggs); Healy v. Tuscany Hills Landscape &
Recreation Corp. (2006) 137 Cal.App.4th 1, 5 [39 Cal.Rptr.3d 547] (Healy).)’ (Rohde v.
Wolf, supra, 154 Cal.App.4th at p. 35.) We have also observed that although section
425.16 and Civil Code section 47, subdivision (b) are not coextensive and are
13
substantively different, ‘the two statutes serve similar policy interests, and courts “look[]
to the litigation privilege [Civ. Code, § 47] as an aid in construing the scope of section
425.16, subdivision [(e)(2)] with respect to the first step of the two-step anti-SLAPP
inquiry . . . .” (Flatley [v. Mauro], supra, 39 Cal.4th at p. 323; see Briggs, supra, 19
Cal.4th at p. 1115; Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 489 [72
Cal.Rptr.3d 847]; Rohde [v. Wolf], supra, 154 Cal.App.4th at pp. 35-36; see also Healy[,
supra,] 137 Cal.App.4th [at p.] 5 . . . [“Both section 425.16 and Civil Code section 47
are construed broadly, to protect the right of litigants to ‘“the utmost freedom of access to
the courts without [the] fear of being harassed subsequently by derivative tort actions.”’
[Citations.]”].)’ (Neville v. Chudacoff, supra, 160 Cal.App.4th at pp. 1262-1263.)”
(Kenne v. Stennis, supra, 230 Cal.App.4th at pp. 965-966.)
As against the Khaliqs—a woman who claimed plaintiff defrauded her in an
investment scheme and her attorney son who represented her—the gravamen of the first
amended complaint appears to be based on their conduct in filing a civil action against
plaintiff, obtaining in that action the entry of a stipulated judgment against him, and
attempting to enforce that judgment against him. As such, plaintiff’s claims against the
Khaliqs arose from protected activity—their right to petition the courts of this state for
relief. The trial court therefore correctly concluded that the Khaliqs had satisfied the first
prong of section 425.16 and thereby had shifted to plaintiff the burden to demonstrate
that he had a probability of success on the merits of his claims against the Khaliqs.
3. Probability of Prevailing on Merits
On the second prong of the section 425.16 analysis—probability of prevailing—
the trial court concluded, inter alia, that plaintiff had not satisfied his evidentiary burden
of demonstrating that there was a probability that he would prevail on the merits of the
claims asserted against the Khaliqs in his first amended complaint. According to the trial
court, “Plaintiff must demonstrate a reasonable probability of prevailing on his claims.
C.C.P. § 426.16(b). He failed to do so. [M]uch of the evidence submitted is
14
inadmissible. See Defendants’ Evidentiary Objections (and the rulings as set forth in the
proposed order).”
In ruling on the Khaliqs’ special motion to strike, the trial court sustained the
Khaliqs’ evidentiary objections to the majority of the evidence that plaintiff submitted in
support of his opposition to the special motion to strike. Because plaintiff does not
challenge those evidentiary rulings on appeal,10 we cannot consider the evidence found
inadmissible by the trial court when analyzing the second prong of section 425.16. Based
on those exclusionary rulings, there was insufficient or virtually no evidence in the record
to show that plaintiff had a probability of success on the merits of his claims against the
Khaliqs in connection with the prosecution of a lawsuit and a stipulated judgment.
Therefore, we hold that the trial court correctly concluded that plaintiff had failed to
satisfy his burden on the second prong of section 425.16
10
Because plaintiff did not provide a reporter’s transcript of the hearing on the
section 425.16 motion, there is no way to determine if plaintiff argued against one or
more of the objections or the trial court’s rulings on them.
15
DISPOSITION
We dismiss as taken from nonappealable orders plaintiff’s appeals from the July 9
and 18, 2013, orders sustaining the demurrers with leave to amend and the September 10,
2013, order denying plaintiff’s motion to extend time. We also dismiss as untimely
plaintiff’s appeal from the September 11, 2013, order dismissing the first amended
complaint against the Nations Title defendants.
We affirm the trial court’s September 13 and 16, 2013, orders dismissing the first
amended complaint for failure to timely amend in favor of defendant Old Republic and
the Diefer Law Group defendants. And, we affirm the trial court’s July 18, 2013, order
granting the Khaliqs’ special motion to strike the first amended complaint. Defendants
are awarded costs on appeal.
MOSK, J.
We concur:
TURNER, P. J.
KRIEGLER, J.
16
Shaw v. Nations Title Co. CA2/5
Combined Opinion