Filed 9/24/20 Hills v. Wells Fargo Bank, N.A. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
RONALD HILLS, B297438
B300013
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. BC713791)
WELLS FARGO BANK, N.A.,
et al.,
Defendants and
Respondents.
APPEALS from orders of the Superior Court of Los Angeles
County, Terry Green, Judge. Affirmed.
Ronald Hills, in pro. per., for Plaintiff and Appellant.
Snell & Wilmer, Michele Sabo Assayag, Joshua K.
Partington, and Kimvi To for Defendants and Respondents Wells
Fargo Bank, N.A., Craig Hansen, Asset Reliance, Inc., and
Edward D. Testo.
No appearance for Defendants and Respondents Kimberly
Martin-Bragg and George Barbour.
____________________________
Ronald Hills appeals from an order granting a special
motion to strike the complaint and awarding attorney fees under
Code of Civil Procedure section 425.161 (the Anti-SLAPP2 motion)
in favor of Wells Fargo Bank, N.A., Asset Reliance, Inc., Craig
Hansen, and Edward D. Testo (collectively Wells Fargo).3 (No.
B297438.) Hills also appeals from an order sustaining demurrers
to Hills’s first amended complaint without leave to amend and
dismissing claims against Kimberly Martin-Bragg (Bragg) and
George Barbour.4 (No. B300013.) We will affirm the trial court’s
orders.
Further statutory references are to the Code of Civil
1
Procedure.
2 “SLAPP is an acronym for strategic lawsuit against public
participation.” (Salma v. Capon (2008) 161 Cal.App.4th 1275,
1283, fn. 4 (Salma).)
3 Hansen is a Wells Fargo Bank employee. Asset Reliance
is the company the United States District Court for the Central
District of California authorized Wells Fargo Bank to employ or
appoint to auction Ivan Rene Moore’s personal property recovered
from Kimberly Martin-Bragg’s home. Testo is an Asset Reliance
employee.
The trial court describes Hills and Moore as “long-time
associates,” and explains that Hills was an officer of Moore’s
recording businesses.
4The complaint alleges that Barbour is Bragg’s spouse,
that he lives in her home, and that he has exercised
“management and control” of the the property at issue.
“[A]n order sustaining a demurrer without leave to amend
is not appealable.” (Vitkievicz v. Valverde (2012) 202 Cal.App.4th
2
BACKGROUND5
1306, 1310, fn. 2.) But a “signed order of dismissal is an
appealable judgment.” (Id. at p. 1310, fn. 1.)
5 The record Hills procured for both of these appeals is
“fragmentary and disorganized.” (See Martin-Bragg v. Moore
(2013) 219 Cal.App.4th 367, 370 (Moore I); also Moore v. Martin-
Bragg (Oct. 25, 2019, B272445) [nonpub. opn.], p. 3, fn. 2 (Moore
III).) It is also “both technically and substantively deficient.”
(Modarei v. Action Property Management, Inc. (2019) 40
Cal.App.5th 632, 636, fn. 6.)
Hills requests that we reverse the trial court’s order
sustaining Bragg’s and Barbour’s demurrers to the first amended
complaint. The record, however, does not contain the demurrers
or any of the briefing on the demurrers. There is no reporter’s
transcript, settled statement, or agreed statement from the
August 6, 2019 hearing on the demurrers. Although the trial
court granted requests for judicial notice submitted by both Hills
on one hand and Bragg and Barbour on the other, neither the
requests nor the exhibits are in the record. The record does
contain multiple copies of documents that have no bearing on the
demurrers, which adds to the record’s volume, but not to its
utility.
The record Hills procured related to the Anti-SLAPP
motion is no more helpful. Wells Fargo provided a three-volume
respondent’s appendix that fills many (but not all) of the gaps in
Hills’s appendix.
Because the record before us does not provide a complete
understanding of these matters, we briefly survey from our
earlier opinions relevant parts of the landscape of the litigation
Hills and Ivan Rene Moore have engaged in over almost a decade.
Along with a reply appendix, Hills filed a request that we
judicially notice each of the documents in the reply appendix. We
“ ‘ “take judicial notice of the truth of facts asserted in documents
3
“At one point, [Ivan Rene] Moore was the record owner of
residential property [located at 6150 Shenandoah Avenue] in
Ladera Heights. For a time, [Moore and Bragg] lived there
together.” (Moore v. Martin-Bragg (Sept. 8, 2017, B276366)
[nonpub. opn.], p. 2 (Moore II); Moore III, supra, B272445, at p.
3.)
“In 2011, [Bragg] initiated an unlawful detainer action
against Moore, who countered with his own lawsuit to quiet title.
The trial court denied Moore’s motion to consolidate the two
matters and found in favor of [Bragg] in the unlawful detainer
action.” (Moore II, supra, B276366, at p. 2.) In August 2013, we
reversed the trial court’s judgment and remanded to the trial
court “for determination of the parties’ rights to legal and
beneficial title to the property, and their respective rights to
possession based on that determination.” (Moore I, supra, 219
Cal.App.4th at p. 395.)
“Meanwhile, having been evicted from the property without
his personal belongings and with the appeal in Moore [I] pending,
Moore initiated [an] action against [Bragg] for trespass to chattel,
such as orders, findings of fact and conclusions of law, and
judgments.” ’ ” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22.)
Although we take judicial notice of the existence of statements
contained in the transcripts filed as part of a court record, the
truth of those statements is not subject to judicial notice. (Ibid.)
Additionally, we decline to judicially notice documents that
appear on their face to be incomplete or modified. (In re Edward
Q. (2009) 177 Cal.App.4th 906, 910, fn. 3.) Hills’s request for
judicial notice is therefore granted as to exhibits 1, 11-12 and 16-
17. The request is granted as to the existence of and existence of
statements contained in exhibits 2, 9-10, and 13-14. The request
is denied as to exhibits 3-8, 15, and 18.
4
conversion, negligence, and damages under Civil Code section
1965. He also filed a companion case against [Bragg] on a variety
of other theories (BC483652). The trial court consolidated the
two Moore lawsuits and subsequently bifurcated the trespass to
chattel, conversion, and Civil Code section 1965 causes of action
for jury trial.
“The jury determined the value of Moore’s personal
property was $2.5 million and awarded him that sum. On the
conversion cause of action, the jury also awarded Moore lost
profits in the sum of $650,000. The trial judge permitted Moore
to amend his pleading during trial to conform to proof and add a
prayer for return of the personal property. The jury rendered an
advisory verdict recommending the damages award be reduced by
$2,500,000 if [Bragg] returned Moore’s personal property.”
(Moore II, supra, B276366, at pp. 3-4, fn. omitted.) The jury’s
verdict was eventually reduced to a final judgment for Moore
against Bragg for $3,150,000, which this court’s Division Five
affirmed in Moore II.6 (Id. at pp. 3, 15.)
In May 2015, the United States District Court for the
Eastern District of Wisconsin entered an amended judgment
against Moore (and several entity defendants related to Moore) in
an unrelated action in favor of Wells Fargo Bank (WFB) for
$7,106,037.28. The Wisconsin judgment allowed WFB to
foreclose upon certain real properties owned by defendants and to
“replevin the intangible property, personal property, royalties,
6 The trial court concluded after a six-day bench trial in a
different action that the real property at 6150 Shenandoah
Avenue belonged to Bragg. (Moore III, supra, B272445, at pp. 9,
11.) We affirmed the trial court’s judgment in Moore III. (Id. at
p. 19.)
5
profits and other collateral pledged by the defendants.” WFB
filed a notice of judgment lien with the California Secretary of
State on August 11, 2016.
On September 28, 2016, Bragg, who was still in possession
of Moore’s personal property that was now subject to the
Wisconsin judgment, filed a Chapter 7 bankruptcy petition. In
December 2016, WFB filed a motion for relief from the
bankruptcy stay, requesting the bankruptcy court’s permission to
“proceed under applicable nonbankruptcy law to enforce its
remedies to repossess and sell” Moore’s personal property in
Bragg’s possession. The bankruptcy court entered an order
granting WFB’s motion in January 2017.
WFB secured a writ of execution for its Wisconsin judgment
in the United States District Court for the Central District of
California on February 3, 2017. On April 20, 2017, the United
States Marshal seized Moore’s personal property from Bragg’s
home consistent with the district court’s order instructing it to do
so.7
On May 4, 2017, Hills filed a complaint in the United
States District Court for the Central District of California
alleging a variety of federal and state law claims against the
United States Marshal and the respondents here. In the federal
complaint, Hills alleged that Hills had “kept his business and
professional property” at 6150 Shenandoah Avenue, and that
“[o]n February 12, 2012,” when Bragg evicted Moore from the
property, his personal property was “wrongfully kept by [Bragg]
7WFB later moved the district court, and the district court
granted, an order allowing WFB to sell Moore’s personal property
the Marshal seized from Bragg’s home and apply the proceeds to
the Wisconsin judgment.
6
since then.” “Since the eviction in February” 2012, according to
the federal complaint, Hills “has been seeking the return of his
property. In 2013,” the complaint alleges, “[Moore] won a
conversion and trespass to chattel action for some of these
properties,” but Bragg never returned them.
On June 28, 2018, the district court dismissed Hills’s
complaint with prejudice as to the federal claims, and without
prejudice as to the state law claims.
On July 13, 2018, Hills filed the complaint in this action
alleging 10 causes of action against the respondents here, among
other defendants.8 As in the federal complaint, Hills alleged that
he “kept . . . personal and business properties at the residence
located at 6150 Shenandoah Avenue,” that Bragg “unlawfully
evicted” Moore from the property in 2012, that Bragg never
returned the property even after “Moore won a conversion and
trespass to chattel action for some of [the] properties,” that Bragg
and Barbour conspired with Wells Fargo to take the property,
and that Wells Fargo took the property.
Wells Fargo responded to Hills’s complaint with demurrers
(filed on August 20, 2018) and the Anti-SLAPP motion at issue
here (filed on September 7, 2018).9 The trial court ordered Wells
8 The causes of action in the original complaint are labeled
(1) conversion, (2) breach of fiduciary duty of bailment
agreement, (3) intentional interference with prospective economic
advantage, (4) negligent interference with prospective economic
advantage, (5) trespass to chattel, (6) replevin, (7) violations of
Business and Professions Code section 17200 et seq., (8)
negligence, (9) “punitive damage allegation,” and (10) “for
preliminary and permanent injunction.”
9The record contains no indication how Bragg and Barbour
responded to Hills’s original complaint.
7
Fargo’s demurrers off calendar when Hills filed his first amended
complaint (FAC); the Anti-SLAPP motion remained on calendar.
(See Salma, supra, 161 Cal.App.4th at pp. 1293-1294.)
Hills filed the FAC on March 5, 2019, this time alleging 12
causes of action against the respondents and other defendants,
but based on the same basic set of allegations.10
Bragg and Barbour demurred to the FAC and requested
judicial notice of at least 15 documents. Hills requested judicial
notice of at least an additional 23 documents.
The trial court heard Wells Fargo’s Anti-SLAPP motion on
April 30, 2019. The trial court granted Wells Fargo’s request for
judicial notice it filed in support of its demurrers to the original
complaint, granted Wells Fargo’s Anti-SLAPP motion, and
awarded Wells Fargo $12,824 in attorney fees in connection with
the Anti-SLAPP motion. Hills filed a premature notice of appeal
from the trial court’s order that we will deem timely.11
10The cover of the complaint lists 12 causes of action
numbered as 13—intentional interference with prospective
economic advantage is listed as causes of action numbers six and
seven. The body of the complaint skips number 12 and labels the
twelfth cause of action as 13. The FAC’s causes of action are (1)
intentional misrepresentation, (2) conversion, (3) concealment
under Civil Code section 1710, (4) constructive fraud under Civil
Code section 1573, (5) negligent misrepresentation, (6)
intentional interference with prospective economic advantage, (7)
negligent interference with prospective economic advantage, (8)
trespass to chattel, (9) replevin, (10) violation of Business and
Professions Code sections 17200 et seq., (11) negligence, and (12)
(incorrectly labeled as (13)) constructive trust.
11Hills filed his notice of appeal in No. B297438 on May 2,
2019; the trial court did not file its order granting the Anti-
SLAPP motion and awarding attorney fees until May 13, 2019.
8
On August 6, 2019, the trial court heard Bragg and
Barbour’s demurrers to the FAC. The trial court granted Bragg’s
and Barbour’s request for judicial notice of eight documents and
Hills’s request for judicial notice of seven more documents. The
trial court further granted both parties’ requests for judicial
notice in their entirety (at least 15 documents for Bragg and
Barbour and at least 23 documents for Hills, none of which are
part of our record) “as to the existence of the documents, and the
fact that certain statements were made, but not as to the truth of
the contents.” The trial court sustained the demurrers without
leave to amend and dismissed Bragg and Barbour from the case.
Although it is not in our record, our case file reflects that Hills
filed a timely notice of appeal from the trial court’s order.
DISCUSSION
A. Wells Fargo’s Anti-SLAPP Motion
“The anti-SLAPP statute is a procedural remedy to dispose
of lawsuits that are brought to chill the valid exercise of First
Amendment rights of petition and free speech.” (Taheri Law
Group v. Evans (2008) 160 Cal.App.4th 482, 488.) Section 425.16
provides, “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
We will treat the notice of appeal as having been filed
immediately after the trial court entered its order. (Cal. Rules of
Court, rule 8.406(d); see also Lee v. Kim (2019) 41 Cal.App.5th
705, 718, fn. 7.)
9
the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)
An “ ‘act in furtherance of a person’s right of petition or free
speech . . . 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 . . . .” (Id.
at subd. (e).) Section 425.16 is to be construed broadly. (Id. at
subd. (a).)
We review the trial court’s ruling de novo, using a two-step
approach. (Tuchscher Development Enterprises, Inc. v. San Diego
Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1231-1232.) We
determine first whether the moving party has made a threshold
showing that the challenged cause of action arises from protected
activity. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier
I).) If the moving party meets this burden, we determine
whether the opposing party has established a probability of
prevailing on the claim. (Ibid.) “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 being stricken under the statute.”
(Id. at p. 89.) At each step of the analysis, 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).)
1. Arising From Wells Fargo’s Protected Activity
In determining whether the threshold “arising from”
requirement is met, we look for “the principal thrust or gravamen
of the plaintiff’s cause of action.” (Martinez v. Metabolife
10
Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) A cause of action
arises from an act if that act forms the basis for the cause of
action. (Kolar v. Donahue, McIntosh & Hammerton (2006) 145
Cal.App.4th 1532, 1537.) The “anti-SLAPP statute’s definitional
focus is not the form of the plaintiff’s cause of action but, rather,
the defendant’s activity that gives rise to his or her asserted
liability—and whether that activity constitutes protected speech
or petitioning.” (Navellier I, supra, 29 Cal.4th at p. 92.)
Hills contends that the gravamen of the complaint is
attempting to recover personal property that belongs to him.
Citing the original complaint’s paragraphs 21 through 41,
however, the trial court concluded that the gravamen of the
complaint “is the act of levying upon the contents of 6150
Shenandoah [Avenue], which [Hills] claims belong to him.”
The complaint’s factual allegations regarding Wells Fargo
begin at paragraph 21. Hills alleged that Wells Fargo conspired
with Bragg and Barbour “to take dominion and control of [Hills’s]
personal and business property” without Hills’s consent.
Paragraphs 21 through 41 clarify that Hills’s allegations are
based on the Wells Fargo respondents working with the United
States Marshal to collect personal property from 6150
Shenandoah Avenue. Based on the allegations in the complaint,
we agree with the trial court that the gravamen of the complaint
is that Wells Fargo used judicial process to levy on its Wisconsin
judgment against Moore by recovering from Bragg’s home
Moore’s personal property that Hills now claims belongs to him.
Actions taken to collect a judgment constitute protected
activity. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055, 1065.)
Hills further contends, however, that because he was not
named as a defendant in the Wisconsin lawsuit that resulted in
11
Wells Fargo’s judgment, Wells Fargo’s conduct in levying on its
Wisconsin judgment against Moore is not protected activity as to
Hills. We disagree. It is the gravamen of the allegations about a
defendant’s conduct—not the identity of the plaintiff—that drives
the step one analysis. Whether Hills was subject to the
Wisconsin judgment does not bear on whether Wells Fargo’s use
of judicial process to levy on that judgment was protected
activity.
2. Hills’s Probability of Prevailing
Because Wells Fargo has made the required threshold
showing that Hills’s causes of action arise from protected activity,
we next consider whether Hills demonstrated a probability of
prevailing on his claims. “In order to establish the necessary
probability of prevailing, [a] plaintiff [is] required both to plead
claims that [are] legally sufficient, and to make a prima facie
showing, by admissible evidence, of facts that would merit a
favorable judgment on those claims, assuming [the] plaintiff’s
evidence were credited.” (1-800 Contacts, Inc. v. Steinberg (2003)
107 Cal.App.4th 568, 584.)
At this stage of the proceedings, the plaintiff need only
demonstrate a “minimum level of legal sufficiency and triability.”
(Castleman v. Sagasar (2013) 216 Cal.App.4th 481, 490.) “The
evidence favorable to the plaintiff is accepted as true, while the
defendant’s evidence is evaluated to determine if it defeats the
plaintiff’s claim as a matter of law, e.g., on grounds of privilege or
immunity.” (Ibid.) Thus, the plaintiff’s burden at this step is
akin to the standard on review of a motion for summary
judgment, nonsuit, or directed verdict. (Greka Integrated, Inc. v.
Lowrey (2005) 133 Cal.App.4th 1572, 1581.) As at step one, “we
again consider the pleadings and the supporting and opposing
12
declarations stating the facts on which the claims are based.”
(Ibid.) The “plaintiff must satisfy the second prong of the test
and ‘establish evidentiary support for [the] claim.’ ” (Navellier v.
Sletten (2003) 106 Cal.App.4th 763, 775 (Navellier II).)
The trial court concluded that Hills’s claims failed on two
grounds. First, the trial court concluded that Hills had produced
insufficient evidence “to make a prima facie case that he owns the
property” that is the subject of the litigation. Second, the trial
court concluded that Hills’s claims were barred based on issue
preclusion—that the ownership of the property that is the subject
of this litigation had been preclusively litigated in the federal
courts. We agree with the trial court’s conclusion that Hills’s
claims against Wells Fargo are barred by issue preclusion.
“Collateral estoppel, or issue preclusion, ‘precludes
relitigation of issues argued and decided in prior proceedings.’ ”
(Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.)
“ ‘Traditionally, we have applied the doctrine 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.’ ” (Thee Aguila, Inc. v. Century Law Group, LLP
(2019) 37 Cal.App.5th 22, 28-29.)
The specific question of Hills’s ownership of the property at
issue in this action was litigated in Wells Fargo’s Central District
action levying on its Wisconsin federal court judgment against
13
Moore. In a June 8, 2017 order regarding Moore’s motion to
vacate the district court’s order instructing the United States
Marshal to levy on Moore’s property in Bragg’s possession, the
district court noted that “Mr. Hills and [another claimant] claim
to be the owners of some of the personal property at issue but only
identify one or two items each and do not present any
documentary, admissible evidence that they own any of the
property. Moore mentions other people that purportedly own
some of the property but presents no declarations or proof from
these other people, named and unnamed. [¶] There is no
evidence of fraud. [¶] The Court, nonetheless, will require Wells
Fargo to submit an inventory of the personal property seized at
[Bragg’s] house on April 20, 2017 with a verification [regarding
the specific items seized]. Wells Fargo, before sale, must establish
Moore’s ownership.” (Italics added.)
Wells Fargo established Moore’s ownership of the property
to the district court’s satisfaction, and on June 23, 2017 the
district court ordered the sale of the seized property. The United
States Court of Appeals for the Ninth Circuit affirmed the district
court’s order, noting that “[t]he district court did not clearly err in
determining that the items levied upon by the U.S. Marshal were
the personal property of Moore or his companies.” (Wells Fargo
Bank, N.A. v. Rufftown Entertainment Group, Inc. (9th Cir. Apr.
16, 2018, No. 17-56005) [nonpub. opn.] p. 2.)
The district court’s orders establish that Hills participated
in the litigation regarding the ownership of the property at issue
here and that the district court specifically considered Hills’s
assertion of ownership and rejected it. We agree with the trial
court that Hills did not demonstrate any probability that he
would prevail on any of his claims against Wells Fargo.
14
B. Bragg’s and Barbour’s Demurrers
The trial court heard Bragg’s and Barbour’s demurrers to
the FAC on August 6, 2019, and the same day entered an order
granting Bragg’s, Barbour’s, and Hills’s requests for judicial
notice, sustaining Bragg’s and Barbour’s demurrers to the FAC
without leave to amend, and dismissing Bragg and Barbour from
the case.
“In determining whether plaintiff[ ] properly stated a claim
for relief, our standard of review is clear: ‘ “We treat the
demurrer as admitting all material facts properly pleaded, but
not contentions, deductions or conclusions of fact or law.
[Citation.] We also consider matters which may be judicially
noticed.” [Citation.] Further, we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their
context. [Citation.] When a demurrer is sustained, we determine
whether the complaint states facts sufficient to constitute a cause
of action. [Citation.] And when it is sustained without leave to
amend, we decide whether there is a reasonable possibility that
the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has
been no abuse of discretion and we affirm. [Citations.] The
burden of proving such reasonable possibility is squarely on the
plaintiff.’ ” (Zelig v. County of Los Angeles (2002) 27 Cal.4th
1112, 1126, italics added (Zelig).)
The FAC alleged 12 causes of action (erroneously listed and
labeled as 13) that the trial court separated into two categories:
“(1) claims for damages stemming from the actual conversion of
the property (i.e. conversion, interference, trespass to chattel,
replevin, and constructive trust), and (2) claims that [Bragg and
15
Barbour] lied to the various federal judges that oversaw the levy
on and sale of the property (i.e. fraud and negligence).”12
The trial court concluded that Hills’s causes of action
against Bragg and Barbour regarding the taking of his personal
property were time-barred. The trial court correctly observed
that “[t]he statute of limitations for conversion, trespass to
chattel, and replevin is three years. [(§ 338.)] Interference torts
have a two-year limitations period. [(§ 339; Kolani v. Gluska
(1998) 64 Cal.App.4th 402, 408.)] According to the FAC . . . and
the matters judicially noticeable, [Hills] was deprived of his
property no later than 2012, and perhaps earlier. Therefore, the
limitations periods for all these claims were up in 2015. This
case was filed in the middle of 2018; the statutes for these
various claims may well have run two or (in the case of the
interference torts) three times over.”
The trial court concluded that Hills’s fraud and negligence
causes of action (intentional misrepresentation, concealment,
constructive fraud, negligent misrepresentation, and negligence)
concerning allegations regarding the levy and sale of the personal
property at issue were barred by the litigation privilege. “The
bases of these claims are allegations that [Bragg and Barbour]
12 The trial court explained that the “cause of action for
unfair competition is the only claim which crosses both
categories. However, because it is a fundamentally derivative
claim with a 4-year statute of limitations (Bus. & Prof. Code §
17208), its fate is directly tied to the fate of the other causes of
action.” The trial court explained that it would not
independently examine the unfair competition cause of action
because “[t]o the extent it is based on conversion, it’s time-barred;
to the extent it’s based on alleged fraud in court, it’s barred by
the [litigation] privilege.”
16
lied in various federal court proceedings that led up to the levy
and sale, telling the federal judges that” the property belonged to
Moore rather than Hills. “The communications to which [Hills]
objects are communications made in judicial proceedings.
Therefore, they cannot form the basis for any liability on the part
of [Bragg or Barbour]. This is as straightforward a case for the
application of the [litigation] privilege as this court ever sees.”
(Fn. omitted.)
Hills contends that the trial court improperly considered
and relied on what Hills characterizes as irrelevant materials
from unrelated lawsuits when it ruled on Bragg’s and Barbour’s
demurrers, and argues that we should reverse the trial court’s
order on that basis. We disagree for two reasons.
First, as in any appeal, “the burden is on the appellant to
establish the existence of prejudicial error affecting the merits of
his appeal, and such prejudice must affirmatively appear in order
to warrant a reversal.” (Kyne v. Eustice (1963) 215 Cal.App.2d
627, 635-636.) At the hearing on Bragg’s and Barbour’s
demurrers, the trial court considered requests for judicial notice
of at least 38 documents—15 submitted by Bragg and Barbour,
and another 23 submitted by Hills. The trial court granted
Bragg’s and Barbour’s request for judicial notice “as to Exhibits
B, E-F, H, K-L, and N-O,” and granted Hills’s request for judicial
notice “as to Exhibits B-D, I, P, R, and W.” It granted all other
requests for judicial notice “as to the existence of the documents,
and the fact that certain statements were made, but not as to the
truth of the contents.” (Original italics.) We note again that our
review of a trial court’s order sustaining demurrers includes
“matters which may be judicially noticed.” (Zelig, supra, 27
Cal.4th at p. 1126.) The record Hills procured for our review,
17
however, contains neither the requests for judicial notice (either
party’s) nor the documents for which notice was requested. The
propriety of any information that the trial court may have
considered outside the four corners of the FAC, therefore, is not
properly before us. For that reason, it would be appropriate to
affirm the trial court’s judgment based on Hills’s failure to
procure an adequate record for our review.
Second, even without regard to documents that may have
been judicially noticed, the allegations in the complaint establish
Bragg’s and Barbour’s absolute defenses.
In paragraph 13 of the FAC, Hills alleges that he “held the
6150 Shenandoah real property in trust for the Moore family and
their corporations, and they both resided there until 2012, when
[Bragg] caused them to be wrongfully evicted, claiming
ownership . . . .” and that “[Bragg locked out [Moore] and [Hills]
after the eviction and kept all of their property.” Again in
paragraph 18, Hills describes that “[o]n February 12, 2012,”
Bragg “wrongfully evicted” Moore from the Shenandoah Avenue
property, and “took wrongful control over [Hills’s] property.” The
statute of limitations for the FAC’s torts alleging Bragg’s
wrongful retention, dominion, and control over Hills’s personal
property, then, began running on February 12, 2012, at the
latest, and expired in 2014 and 2015. (§§ 338, 339.)
The misrepresentations that Hills identified as the basis for
his misrepresentation causes of action expressly relate to
statements made in connection with Wells Fargo’s effort to
recover the property and satisfy the Wisconsin judgment. For
example, in his misrepresentation causes of action, Hills alleged
that Bragg and Barbour (among other defendants) “proceeded to
provide[ ] false testimony and false [d]eclarations to the United
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States District Court and the United States Bankruptcy Court
that [Hills’s alleged personal property] are Replevin properties
subject to seizure in their zeal to unlawfully take dominion and
control over [Hills’s] personal property” and that Bragg and
Barbour (and other defendants) “failed to apprise [various courts]
and others that the property they were taking [by levy and sale]
belonged to and was owned by [Hills] . . . .” We agree with the
trial court, based solely on the allegations in the complaint, that
those causes of action are squarely barred by the litigation
privilege. (Civ. Code, § 47, subd. (b).)
Finally, Hills has not demonstrated that the complaint
could be amended to state any viable cause of action against
Bragg or Barbour. Consequently, we find no error in the trial
court’s order sustaining Bragg’s and Barbour’s demurrers to the
FAC, and no abuse of discretion in its decision to do so without
granting Hills leave to amend the complaint. (See Camsi IV v.
Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1542.)
DISPOSITION
The trial court’s orders are affirmed. Respondents are
entitled to their costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J. SINANIAN, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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